Opinion
B300117
10-23-2020
In re BRAN S., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MARCOS S., et al., Defendants and Appellants.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendants and Appellants. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Stephanie Jo Reagan, Principal Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18CCJP04002) APPEAL from order of the Superior Court of Los Angeles County, Pete R. Navarro, Juvenile Court Referee. Affirmed. Jamie A. Moran, under appointment by the Court of Appeal, for Defendants and Appellants. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Stephanie Jo Reagan, Principal Deputy County Counsel for Plaintiff and Respondent.
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Marcos S., father of 14-year-old Bran S., appeals from the juvenile court's termination of reunification services at the 12-month permanency review hearing. (Welf. & Inst. Code, § 366.21, subd. (f).) Father contends the juvenile court abused its discretion by terminating his reunification services because, although he did not seek custody of Bran, Father enjoyed positive and consistent visits with Bran, and the court continued the services of Bran's mother, Nora C. We affirm.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. Previous Dependency Proceeding
In April 2008, the juvenile court sustained a dependency petition on behalf of one-year old Bran and his 14-year old sister, Heather S., pursuant to section 300, subdivisions (a) and (b), and declared Bran and Heather dependents of the juvenile court. The juvenile court found that Father, while under the influence of heroin and experiencing delusions and auditory hallucinations, drove a vehicle at high speed on the wrong side of the street with the children in the vehicle. The juvenile court also found that Mother and Father had a 14-year history of domestic violence, Father had a 23-year history of illicit drug use, and Father had a 35-year history of mental and emotional problems, including suicidal ideation, hallucinations, and a diagnosis of psychotic disorder. The juvenile court placed Heather and Bran with Mother. After terminating Father's family reunification services in May 2018, the juvenile court terminated its jurisdiction with a section 362.4 custody order giving Mother sole custody of Heather and Bran in January 2009. The custody order granted Father monitored visitation.
B. April 2018 Incident and the Department's Investigation
On April 27, 2018, the Los Angeles County Department of Children and Family Services (Department) received a report that Mother beat Bran with a shoe while she was under the influence of methamphetamine and that Bran was not attending school. At that time, Heather, her two children, Heather's boyfriend, Mother, and Bran were living in the same house. Heather told the Department that Mother and Bran were arguing and that Mother threatened to hit Bran with a shoe, but Heather took the shoe away from Mother. Although Bran told the police that Mother had physically disciplined him with a shoe and she had physically abused him on other occasions, Bran told the Department that he had lied to the police. Mother told the Department that she and Bran were arguing. Although she threatened to hit Bran, Mother denied hitting him. According to Mother, Father was in the home when the argument started. He did not intervene, telling Mother to "calm down" before he left the home. Mother also disclosed that she had been using methamphetamine for two years. In early June 2018, Mother tested positive for amphetamine and methamphetamine.
Bran told the Department that, "as a result of getting bullied," he had not attended school since February 2018 and "he cut himself one time in February 2018." In early February 2018, Bran was admitted to a hospital "on a section 5585 hold for danger to self" because Bran "reported that he had the intention of cutting his throat with a knife." While in the hospital, Bran stated that "his triggers included being bullied in school for the last two months, as well as 'when he comes home [his] parents are always arguing with each other making him feel depressed.'" Bran was not current on his immunizations, and he had not visited his pediatric clinic since 2016.
On June 14, 2018, the juvenile court issued a removal order detaining Bran from Mother and placing him in Heather's care in the family home under the Department's temporary supervision. The Department confirmed that Mother had moved out of the family home.
C. Dependency Petition and Detention Hearing
On June 25, 2018, the Department filed a petition, alleging jurisdiction under section 300, subdivision (b)(1). The Department alleged that Mother had a "history of illicit drug abuse" and was "a current abuser of amphetamine and methamphetamine, which render[ed] [Mother] incapable of providing regular care for [Bran]." The Department alleged, "On prior occasions, [Mother] was under the influence of amphetamine and methamphetamine while [Bran] was in [Mother's] care and supervision." At a detention hearing on June 26, 2018, without Mother or Father present, the juvenile court found a prima facie case for detaining Bran from Mother and showing that Bran is a person described by section 300. The juvenile court ordered Bran to remain placed with Heather under the Department's care, custody, and control.
On July 26, 2018, the Department filed a first amended petition under section 300, subdivision (b)(1). The Department alleged that Father "ha[d] a history of mental and emotional problems including a diagnosis of schizophrenia, as well [as] auditory and visual hallucinations" and that he "failed to participate in regular psychiatric services." The Department also alleged that Father had failed to protect Bran. The Department further alleged that Mother and Father were incapable of providing Bran with regular care and that they placed Bran at risk of serious physical harm.
At the July 27, 2018 detention hearing, with Mother and Father present, the juvenile court ordered Bran to remain placed with Heather under the Department's supervision and the Department to provide Mother and Father with monitored visitation and referrals for appropriate services. The juvenile court scheduled the jurisdiction/disposition hearing for August 7, 2018.
D. Jurisdiction/Disposition Hearing
1. The Department's Jurisdiction/Disposition Report
Bran told the Department, "'I miss my mom. I feel happy because I know [Heather] would take good care of me.'" Bran expressed that he "wants to continue visiting with [Mother]." In July 2018, Mother told the Department that she started using "crystal meth" a little over two years ago, and the longest she had been able to stop using the drug had been for three months. Mother stated that on July 3 "[she] did a big line." Father told the Department that Mother had been "using crystal meth" on "a daily basis" for five years. According to Father, Mother kept "crystal meth" in the house, and Bran had found it a few times. Father disclosed that Mother had been high while Bran was in the house. According to Father, because Mother was "'stay[ing] up for days'" and "'[o]n a daily basis . . . [consuming] large quantities,'" he "was spending more time [in the family home]. I need[ed] to see her and make sure Bran was okay.'" Father told the Department that he "drove [Mother] to some of her connects. I needed to find out who was the connect during my undercover work to build my hit list."
Father asked the Department "if the case involve[d] him and added he did not wish to be part of the case." Father reported that he was experiencing "auditory hallucinations" during his July 2018 interview with the Department. Father further reported that he had been told he has schizophrenia and possibly a bipolar disorder, he was not taking any psychiatric medication, and he had not seen a psychiatrist in over four years. Father stated, [he] "used to hear aggressive voices telling [him] to commit crimes. . . . [But] I got my eating right and my sleeping right and now I am fine." However, Father told the Department that he still heard voices, stating "I get an excruciating pain like a migraine headache from the hypnotic voice that comes through." Heather told the Department that Father "talks to the voices in a normal voice." Bran reported that Father "hears voices" and will sometimes stay looking at something for a long time. Heather told the Department that Father had been prescribed medication last year.
Father told the Department, although he had a history of drug addiction, he had been "sober for almost ten years." On July 26, 2018, Father took an "on demand drug test," which was "negative for all substances." While Father maintained contact with Bran by telephone, he had not visited Bran since Bran's detention. Father did not have a stable home, and he slept in his car at times. Prior to Bran's detention, "Father was using [M]other's home as a place to sleep." Father was "okay with Heather having custody of Bran." Father stated, "If I were to get a bigger place, then I would want custody of [Bran]."
2. August 2018 Hearing
At the August 7, 2018 jurisdiction/disposition hearing, Father's counsel argued, "The mere fact that [a] parent is mentally ill is not sufficient to sustain a section 300(b) finding, unless it's specifically shows how the child will be harmed . . . At this time, he's not requesting custody. He's requesting visitation." Bran's counsel asked the juvenile court to sustain the petition. The juvenile court sustained both counts of the petition involving Mother and Father and declared Bran a dependent of the juvenile court. The juvenile court ordered Bran suitably placed in Heather's home under the Department's supervision.
Bran's counsel argued, "With respect to the [b-2 count], I believe that even though the Father was the non-custodial parent, I believe that the Father did have access to the child. . . . In 2012, the reporting party indicated that the Father brought the child to school. . . . The Father did not want to let the child go to class. . . . The Father said that if anyone comes between me and my child, that he would shoot them. . . . Father was present during the April 26, 2018 incident, according to the Mother, when her and the child Bran were arguing. . . . There have been incidences when the Father had the child, previous referrals regarding the Father's care of the child. . . . The Father admits that he hasn't been in psychiatric services and he hasn't taken his meds. . . . We have a child here who has his own mental health issues, Your Honor. In February of 2018, he was hospitalized for cutting himself and being bullied at school. . . . [Bran] reported that his triggers included being bullied at school for the last two months, as well as when he comes home, parents are always arguing with each other, making him feel depressed."
In sustaining the petition as to Father "notwithstanding Father's status as a non-custodial parent," the juvenile court found, "There is an unresolved psychiatric history that resulted in the [previous filing]. . . . in which Father's enhancement services were terminated, it doesn't appear . . . that those . . . psychiatric issues, have been dealt with. That, in addition to the special needs, psychiatric needs, that the child has is going to need a parent . . . or a caregiver, who's open to psychiatric treatment, open to taking measures that would benefit this child. And the Father's history indicates that he has been unable to address his own issues, much less that of a 12-years-old boy."
The juvenile court ordered a full drug and alcohol program with random drug testing, parenting classes, and individual counseling for Mother and mental health counseling, including a psychiatric evaluation and individual counseling, for Father. The juvenile court also ordered Father to comply with any prescribed psychotropic medication plan. The juvenile court ordered monitored visitation for Mother and Father. The juvenile court set the six-month review hearing for February 5, 2019.
E. Six-Month Review Hearing
1. The Department's Report
In its six-month status review report filed on January 17, 2019, the Department stated that Bran was "happy" living with Heather and her two children. Bran appreciated everything that Heather was doing for him. Heather continued to provide for all of Bran's needs. Bran stated he was "no longer bullied" at his new school. However, Bran struggled academically and "skipped school every other day for two weeks." Bran stated, "he was just tired and didn't feel like going to school."
Although Bran reported that he wanted to see Mother more often, Mother had not visited him since November 2018. Bran stated, "I really miss my mom. I just want her to live with me." The Department reported Mother had "made very little progress" regarding her case plan and had "very minimal contact" with the Department. Although Mother enrolled in a drug program, she was discharged for not attending. Mother was homeless and "stay[ing] with friends and family." With Heather monitoring the visits, Father's visits with Bran took place at restaurants. Father and Bran talked about their days, school, sports, and movies. Heather reported that Father's visits with Bran were consistent and "'very good.'" Bran enjoyed his visits with Father and hoped that Father could care for him. However, Bran knew that Father "[did] not have a place to live."
Father worked full time at the same distribution company for the past four years. At a psychiatric evaluation on October 17, 2018, Father was diagnosed with an "Adjustment Disorder" and given referrals for counseling. The psychiatrist did not prescribe any medication for Father. The Department also provided Father with a list of locations for individual counseling; however, Father did not enroll in counseling. Although Father reported "he would love to have Bran with him," Father "currently [was] homeless." Father "stated that he has been residing with friends or even out of his car." Father was "fine with [Bran] being in the care of [Heather]." Father stated, "I love my son, I want the best for him. I know he is in good hands with [Heather]."
The Department recommended that the juvenile court order an additional six months of reunification services for Mother and Father.
2. February 2019 Hearing
At the February 5, 2019 review hearing (§ 366.21, subd, (e)), the juvenile court, after hearing Heather's testimony, found that the Department failed to offer Mother "reasonable services" because "for some arbitrary reason the social worker . . . terminated [Mother's] visits." The juvenile court ordered continued reunification services and monitored visits for Mother and further reunification services and unmonitored visits for Father on Sundays from 12:00 noon to 3:00 p.m. The juvenile court scheduled a six-month review hearing (§ 366.21, subd. (e)) for Mother and a 12-month review hearing (§ 366.21, subd. (f)) for Father. The juvenile court set the hearings for August 6, 2019.
F. Mother's Six-Month Review Hearing and Father's 12-Month Review Hearing
1. The Department's Report
The Department reported that Bran felt "comfortable" living in Heather's home and that he wished to remain with Heather if Mother and Father failed to reunify with him. Bran declined the Department's offer for individual counseling services, stating "I don't need it." Mother and Father visited Bran regularly. Bran looked forward to his visits with Mother. Bran told the Department, "I want to go back with my mom." Mother began a 90-day inpatient residential treatment program in April 2019.
Bran also looked forward to visits with Father and enjoyed the visits. Father told the Department that he continued to be homeless and that he slept in his vehicle. Father "reported that he does not have appropriate housing to accommodate [Bran] for overnight visitation." Father stated, "'I want my son to be okay and I know he's okay with Heather. I want to be able to reunify that's my goal, but [i]f I can't, I want him to stay with Heather.'" Although Father had failed to enroll in individual counseling, Father told the Department that he attended a counseling intake appointment on July 8, 2019.
The Department recommended that the juvenile court order an additional six months of family reunification services for Mother and terminate Father's reunification services.
2. August 2019 Hearing
At the August 6, 2019 hearing, the juvenile court found that Mother was in partial compliance with her case plan and ordered the Department to continue to provide reunification services to Mother. The juvenile court found there was "a substantial probability that [Bran] may be returned to [Mother] by the 12-month date." Father's counsel requested that the juvenile court order the Department to continue to provide Father with family reunification services because Father was "working on getting his mental health services started" and had "consistent positive unmonitored visits with Bran."
The juvenile court terminated Father's reunification services and continued Father's unmonitored Sunday visitation with Bran. The juvenile court found that, although "Father was given ample time to complete . . . a basic [case] plan, . . . there's been no progress, no movement, no indication that further reunification would serve any practical purpose." The juvenile court ruled, "return of [Bran] to the Father would create a substantial risk of detriment to [Bran's] safety, protection, physical, and emotional well-being. Father has failed to comply with his case plan. . . . The court finds there is not a substantial probability that [Bran] can be returned to the Father by the 18-month date."
At Mother's 12-month permanency hearing (§ 366.21, subd. (f)), on February 4, 2020, the juvenile court terminated Mother's reunification services and set a section 366.26 selection and implementation hearing for June 2, 2020. On April 29, 2020, the juvenile court continued the selection and implementation hearing to January 14, 2021. We augment the record to include the juvenile court's February 4, 2020 and April 29, 2020 orders. (See Cal. Rules of Court, rule 8.155(a)(1)(A).)
Father timely appealed from the order terminating his reunification services.
DISCUSSION
A. The Juvenile Court Did Not Abuse Its Discretion When It Terminated Father's Reunification Services
1. Applicable Law and Standard of Review
When a minor is removed from parental custody, family reunification services play a critical role in dependency proceedings. (§ 361.5; In re M.F. (2019) 32 Cal.App.5th 1, 13.) At the disposition hearing, in the absence of certain specified exceptions, the juvenile court is required to order the Department to provide "child welfare services to the child" and his or her parents for the purpose of facilitating reunification of the family. (§ 361.5, subd. (a); In re Jesse W. (2007) 157 Cal.App.4th 49, 59.) Services "may include provision of a full array of social and health services to help the child and family and to prevent reabuse of children." (§ 300.2.) When, as here, the child was three years of age or older at the time of removal, a parent is generally entitled to 12 months of reunification services. (§ 361.5, subd. (a)(1)(A); In re Jesse W. at p. 59; see also In re J.P. (2014) 229 Cal.App.4th 108, 121 ["'generally, the statutory scheme envisions that a parent of a child who is three years of age or older will have 12 months to mitigate the conditions that led to the initial removal and continued custody of the child"].)
The juvenile court must review the case at least once every six months. (§ 366; see In re Marilyn (1993) 5 Cal.4th 295, 308.) "At each review hearing, if the child is not returned to the custody of his or her parent, the juvenile court is required to determine whether reasonable services that were designed to aid the parent in overcoming the problems that led to the initial removal and the continued custody of the child have been offered or provided to the parent (reasonable services finding). [Citation.] Generally, the remedy for not offering or providing reasonable reunification services to a parent is an extension of reunification services to the next review hearing." (In re J.P., supra, 229 Cal.App.4th at pp. 121-122.)
Section 366.21, subdivision (f)(1), provides, "The permanency hearing shall be held no later than 12 months after the date the child entered foster care. . . ." That section further provides, at the permanency hearing, "the court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.21, subd. (f)(1).)
Section 366.21, subdivision (g)(1), provides that the juvenile court may continue the permanency hearing for up to six months "if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent or legal guardian and safely maintained in the home within the extended period of time or that reasonable services have not been provided to the parent or legal guardian." In order to find a "substantial probability that the child will be returned," the juvenile court must find: "[¶] That the parent or legal guardian has consistently and regularly contacted and visited with the child. [¶] That the parent or legal guardian has made significant progress in resolving problems that led to the child's removal from the home. [¶] The parent or legal guardian has demonstrated the capacity and ability both to complete the objectives of his or her substance abuse treatment plan and to provide for the child's safety, protection, physical and emotional well-being, and special needs." (§ 366.21, subds. (g)(1)(A), (B), (C).)
For a child three years of age or older at initial removal, when 12 months of "court-ordered services" have been provided under section 361.5, subdivision (a)(1)(A), at the permanency hearing, the juvenile court may extend "court-ordered services" "up to a maximum time period not to exceed 18 months" after original removal "only if it finds that there is a substantial probability that the child will be returned to the physical custody of his or her parent within the extended time period or that reasonable services have not been provided to the parent or the guardian." (§ 361.5, subd. (a)(3)(A).)
"In deciding whether to extend or terminate reunification services, the court does not consider the parents as one unit, but instead treats each of them on his or her own merits. 'Indeed, at each review hearing, the court must evaluate the efforts or progress toward reunification made by each parent individually by considering "the extent to which he or she availed himself or herself to services provided." [Citations.] Although the purpose of services is to facilitate a child's return to parental custody, reunification often involves one, but not both, parents.'" (In re Katelynn Y. (2012) 209 Cal.App.4th 871, 877; accord, In re Jesse W., supra, 157 Cal.App.4th at p. 60 ["[i]n deciding whether to terminate the services of one parent who has failed to participate or make progress toward reunification, the court is not constrained by a consideration of the other parent's participation in services"].)
We review the court's determination whether to terminate reunification services for abuse of discretion. (In re G.L. (2014) 222 Cal.App.4th 1153, 1164-1165; see also In re Alanna A. (2005) 135 Cal.App.4th 555, 565.)
2. The Juvenile Court Reasonably Terminated Father's Reunification Services
Father does not contest the juvenile court's finding that there was no "substantial probability" that he would reunify with Bran within six months after the 12-month permanency hearing if the court ordered further reunification services and continued his permanency hearing. Rather, Father argues "providing [him] with additional services . . . is something that is in Bran's best interest." According to Father, the "juvenile court abused its discretion in this case because of the continuation of the services to [M]other and the fact that [F]ather's positive, bonded relationship with Bran is likely to continue. . . .[T]he court should have ordered additional services for [F]ather." However, the juvenile court did not abuse its discretion in terminating Father's reunification services at the 12-month permanency hearing.
In the prior dependency proceeding, after earlier terminating Father's reunification services, in January 2009, the juvenile court terminated jurisdiction with a section 362.4 order giving Mother sole custody of Bran and Father monitored visitation with Bran. Father did not seek custody of Bran in the family court. Nor did Father request custody of Bran in this proceeding. Rather, in June 2018, Father told the Department that "he did not wish to be part of the case." Throughout this proceeding, although he mentioned the possibility of reunifying with Bran, Father advised the Department that he was "okay with Heather having custody of Bran." Father stated, "I know [Bran] is in good hands with [Heather]." The juvenile court could have reasonably inferred that Father was content for Bran to remain under Heather's care and that Father would not seek custody of Bran.
Father also failed to comply with his case plan. Despite the juvenile court's August 7, 2018 order requiring him to participate in individual counseling to address case issues, at the time of the permanency hearing, Father had attended only a psychiatric evaluation in October 2018 and an intake appointment for counseling in July 2019. The juvenile court reasonably found, "there's been no progress, no movement, no indication that further reunification [services] would serve any practical purpose." Therefore, the juvenile court under section 361.5, subdivision (a)(3)(A), reasonably concluded that "there [was] not a substantial probability that [Bran] can be returned to the Father by the 18-month date" and did not extend the time period for Father's reunification services. The juvenile court's finding was well within its discretion. (See generally In re Stephanie M., supra, 7 Cal.4th at pp. 318-319 ["'"[t]he appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court"'"].)
Despite the juvenile court's uncontested no "substantial probability" finding, Father argues the juvenile court should have continued his reunification services because the court continued Mother's services. Whatever merit there may have been to Father's argument, his argument is moot because the juvenile court terminated Mother's services in February 2020 and set a selection and implementation hearing under section 366.26.
Father relies on In re Alanna A., supra, 135 Cal.App.4th 555. In In re Alanna A., after affirming the juvenile court's termination of the father's reunification services at the 12-month permanency hearing even though the juvenile court continued for the mother's services for an additional six months, the court noted, "As a practical matter, however, where a nonreunifying parent is likely to have some continued contact with his or her child, further services to that parent may be in the child's best interests." (Id. at p. 565.) Here, given Father's failure to comply with his case plan and his long standing refusals to address his mental health issues, the juvenile court reasonably found that further reunification services would not "serve any practical purpose."
DISPOSITION
The juvenile court's August 6, 2019 order is affirmed.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
PERLUSS, P. J.
FEUER, J.