Opinion
E053604
11-09-2011
In re C.D., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. C.L.D., Defendant and Respondent; C.D., Appellant.
Konrad S. Lee, under appointment by the Court of Appeal, for Appellant. Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Respondent. Pamela J. Walls, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
(Super.Ct.No. SWJ009490)
OPINION
APPEAL from the Superior Court of Riverside County. Michael J. Rushton, Judge. Reversed with directions.
Konrad S. Lee, under appointment by the Court of Appeal, for Appellant.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Respondent.
Pamela J. Walls, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
This is an appeal by Minor, C.D., challenging the juvenile court's dispositional order granting reunification services to defendant and respondent C.L.D. (Father). Minor's sole contention on appeal is that there was insufficient evidence to support the juvenile court's order granting Father reunification services. We will find that there is no evidence that the juvenile court considered the requisite factors in determining whether it was in the child's best interests to grant reunification services to Father. We will therefore reverse the order and direct the trial court to conduct a new hearing at which it shall specifically determine whether granting services is in the best interests of the child using the factors set forth in In re Allison J. (2010) 190 Cal.App.4th 1106, 1116.
I
FACTUAL AND PROCEDURAL BACKGROUND
Minor came to the attention of the Riverside County Department of Public Social Services (DPSS) in December 2010 following her birth. Hospital staff was concerned because Father "appeared very jittery and smelled strongly of hard liquor." D.H. (Mother) had a history with DPSS, mental health issues, and prior domestic violence incidents. She was in the process of reunifying with her three older children who had been removed from her care in 2009. Mother admitted that she had lied to her older children's social worker about being pregnant because she did not want the baby to be removed from her care.
Mother is not a party to this appeal.
Father denied being intoxicated while visiting Mother in the hospital. He also denied any current substance abuse. He admitted that he had previously been arrested for burglary and domestic violence. He reported that he lived with his father; however, the paternal grandfather stated that Father did not live in his home. Father was currently unemployed and had two other children whom he visited. The social worker was concerned that Father and Mother resided together, and that Father might not be able to adequately protect the child from Mother. Minor was therefore taken into protective custody.
On December 7, 2010, DPSS filed a petition on behalf of Minor pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (j). Minor was formally detained on the following day and placed in the same foster home as her three older half brothers.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
By December 30, 2010, Minor remained placed in the same foster home as her half brothers. Minor was developing well emotionally and physically. She had appeared comfortable and content in her foster parents' care and was beginning to develop a bond with her older half brothers.
A criminal background check for Father revealed that he had been convicted of robbery in March 1994 and sentenced to state prison for three years and felony corporal injury on a spouse in May 2002 and sentenced to state prison for four years. In addition, in April 2007, Father had an active case for misdemeanor possession of marijuana and providing false identification to the police. He had failed to appear is that matter, and there was an active bench warrant for his arrest.
On January 1, 2011, the paternal grandfather informed the social worker that Father was "in custody" at the California Institution for Men at Chino. Mother confirmed this information, and added that Father was in prison for parole violations and that he had "avoided the police for three years" so he could be with her until after Minor was born. Due to his past criminal history and current incarceration, the social worker recommended denying services to Father pursuant to section 361.5, subdivision (b)(12).
Father was released from prison on February 29, 2011. The social worker thereafter attempted to contact Father and Mother on March 3, 7, 14, and 21, 2011, to no avail. In addition, Father had failed to visit Minor on March 21 and 28, 2011, and had visited on only three of the five occasions available to him.
The social worker eventually contacted Father on March 24, 2011, by making a surprise visit to the parents' home. Father and Mother lived in a one bedroom, one bath apartment, and the apartment appeared to be appropriate. Mother anticipated that all four of her children would be returned to her care. Father confirmed that he had been "'on the run' for three years" and that he would be on parole for the next year. He also stated that he had been in a gang when he had committed the robbery offense and that he "hate[d] what [he] did then."
In April 2011, Mother's services in regard to Minor's half brothers were terminated, and a section 366.26 selection and implementation hearing was set in that matter. Meanwhile, Minor had remained in foster care and was continuing to thrive.
The jurisdictional/dispositional hearing was held on April 4, 2010. Both Mother and Father were present and offered stipulated testimony. Father's counsel noted that Father was currently working in construction; that he had enrolled in a parenting class and would be starting soon; that he was on a waiting list for an anger management program; that he had not been drunk at the hospital, and hospital staff had confused him with someone else; that he desired family reunification services and an opportunity to care for his daughter; and that he had been 16 years old at the time of his robbery conviction, but he had been tried as an adult. Father's counsel argued that it was in Minor's best interests to offer services to Father despite his criminal convictions because "father is willing and ready to be a father. He is stepping up to the plate, so to speak." Counsel also noted, "[I]f we have a dad who wants to be a dad and who's willing to do what needs to be done, I don't see why we wouldn't go that direction . . . when all that's preventing it is a 17-year-old robbery from when he was a minor."
Following argument from counsel, the juvenile court sustained the allegations in the section 300 petition as amended and declared Minor a dependent of the court. The court thereafter denied services to Mother pursuant to section 361.5, subdivision (b)(10), but offered Father services. The court explained: "In this matter, I'm having a difficult time understanding how father's current criminal history where the last significant conviction dates back to 2002 would disqualify him from participating in family reunification services. [¶] . . . [A]lthough there is no bonding between parent and child due to the removal of the child at the time the child was born, this is the child's biological father, he has a vested interest in raising his child, he wants to raise his child, he wants to participate in services, and I do find that that puts him in an advantageous position over all other parties in terms of a desire to effectively raise the child. [¶] As such, even though (b)(12) would otherwise apply, I do find that it would be in the best interest of the child to give the father an opportunity to complete services."
After Minor's counsel interjected and argued that it was not in Minor's best interests to offer Father services, the court noted: "Well, I would find your argument compelling and in many ways I do, except that the underlying crime that I'm being asked to hang the hat of this qualification on is an event that occurred in 1994. We're 15 or 16 years away from that at this point in time. [¶] Although he hasn't lived a model life since 1994, I think his question is a relevant one, so you are saying something that happened in 1994 is going to [disqualify] me from being a parent from this point on. [¶] I don't really have evidence of an active criminal life-style on behalf of father, as I do in many cases, nor do I have evidence to suggest that he could not be an effective parent. [¶] . . . [¶] . . . As I indicated, you make a cogent argument. I believe the decision could perhaps go a different direction, but I think taking into account the totality of the circumstances and the father's active interest in raising this child that it would be in the best interest of this child to reunify."
Minor appealed.
II
DISCUSSION
Minor contends that the juvenile court erred in granting Father reunification services because it was not in the best interests of the child. DPSS support's Minor's position.
"As a general rule, reunification services are offered to parents whose children are removed from their custody in an effort to eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible. [Citation.]" (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) "When a child is removed from the custody of his [or her] parents, reunification services must be offered to the parents unless one of several statutory exceptions applies." (In re William B. (2008) 163 Cal.App.4th 1220, 1227.) Section 361.5, subdivision (b), sets forth certain exceptions, also known as reunification bypass provisions, to this "general mandate of providing reunification services . . . ." (In re Joshua M. (1998) 66 Cal.App.4th 458, 470.)
Section 361.5, subdivision (b), "reflects the Legislature's desire to provide services to parents only where those services will facilitate the return of children to parental custody." (In re Joshua M., supra, 66 Cal.App.4th at p. 470; see also In re Baby Boy H., supra, 63 Cal.App.4th at p. 478 [in section 361.5, subdivision (b), the Legislature "recognize[d] that it may be fruitless to provide reunification services under certain circumstances"].) When the juvenile court determines one or more of the exceptions or bypass provisions apply, "the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citation.]" (Baby Boy H., at p. 478; see also Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744; In re Ethan N. (2004) 122 Cal.App.4th 55, 65.]
Welfare and Institutions Code section 361.5, subdivision (b)(12), allows the court to bypass reunification services where the parent or guardian has been convicted of a "violent felony" within the meaning of Penal Code section 667.5, subdivision (c). (See In re James C. (2002) 104 Cal.App.4th 470, 485 [denial of reunification services pursuant to Welf. & Inst. Code, § 361.5, subd. (b)(12), is proper where the father was convicted of two violent felonies, including robbery with firearm use].) Here, Father was convicted of robbery in 1994. Robbery is a "violent felony" pursuant to Penal Code section 667.5, subdivision (c)(9).
However, "[s]ection 361.5, subdivision (c) enables a parent to obtain reunification services notwithstanding section 361.5[, subdivision] (b)(12) where the parent demonstrates reunification is in the child's best interest by offering evidence of, among other things, his or her current ability to parent. To determine whether reunification is in the child's best interest, the court considers the parent's current efforts, fitness, and history; the seriousness of the problem that led to the dependency; the strength of the parent-child and caretaker-child bonds; and the child's need for stability and continuity. [Citation.]" (In re Allison J. (2010) 190 Cal.App.4th 1106, 1116.) "A best interest finding requires a likelihood reunification services will succeed; in other words, 'some "reasonable basis to conclude" that reunification is possible . . . .'" (Ibid.)
It should be noted, however, that the factors listed above are not exhaustive. It has long been recognized that the concept of a child's best interest "is an elusive guideline that belies rigid definition. Its purpose is to maximize a child's opportunity to develop into a stable, well-adjusted adult." (Adoption of Michelle T. (1975) 44 Cal.App.3d 699, 704.) Thus, additional factors may bear upon the court's best interest finding, depending upon the circumstances of the case.
Hence, under section 361.5, subdivision (c), the juvenile court "shall not order reunification for a parent" described in, inter alia, section 361.5, subdivision (b)(12) "unless the court finds, by clear and convincing evidence, [and the parent affirmatively demonstrates] that reunification is in the best interest of the child." (§ 361.5, subd. (c), italics added; see also In re Ethan N., supra, 122 Cal.App.4th at p. 64; In re William B., supra, 163 Cal.App.4th at p. 1227 ["'"[o]nce it is determined one of the situations outlined in [section 361.5,] subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citation.]"' [Citation.] The burden is on the parent to change that assumption and show that reunification would serve the best interests of the child."].)
The juvenile court has broad discretion in determining whether the parent has met this burden and therefore whether to offer the parent reunification services under subdivision (c). (In re Angelique C. (2003) 113 Cal.App.4th 509, 523.) An appellate court may not disturb the court's best interest determination absent a showing of an abuse of discretion. (Id. at pp. 523-524.) An abuse of discretion is shown when there is no substantial evidence to uphold the findings. (In re Ethan N., supra, 122 Cal.App.4th at pp. 64-65.)
Here, we find that the juvenile court did not specifically enumerate how it weighed each of the four criteria cited above in view of the evidence presented. Based on the court's statements, it appears that it focused primarily on the best interests of Father, as opposed to the best interests of the child. The court did not consider the gravity of the problem leading to Minor's removal. Father argues that Minor was removed from "her parents' care due to Mother's failure to reunite with her other children." However, the court failed to consider the evidence in the record showing that Mother and Father were residing together. In addition, it appears Father was complicit in hiding Mother's pregnancy from DPSS, knowing that Mother had an ongoing dependency matter relating to her other children.
The court also failed to consider the relative bonds between Minor and Father and Minor and her caretakers. As Father admits, "[t]his factor does not favor Father." Minor was removed from parental custody at birth, and at the time of the dispositional history, she was about four months old and had lived her entire life with her foster parents. Father had visited her on only about three occasions. Although we agree with the juvenile court that Father deserved an opportunity to develop a bond with Minor, Father's actions while in custody and upon his release from prison show a lack of diligence in developing such a bond when he had the chance. While incarcerated, it appears that Father had no contact with the social worker or inquired about the well being of Minor. In addition, after his release from prison, he failed to visit Minor on two of the five scheduled visits and appeared to be avoiding the social worker. On the other hand, the record shows that Minor was developing a bond with her caretakers and thriving. She was also developing a bond with her half siblings who resided in the same foster home.
The court also failed to take into account Minor's need for stability and continuity. Father had obtained a one-bedroom apartment, which he shared with Mother, and had also obtained employment. However, while he had signed up for anger management and parenting classes, he had not begun them. In addition, the record is not clear whether Father would be able to remain stable or whether Minor's foster parents would still adopt her should reunification efforts fail.
Although, as argued in the court below, Father is correct that there "is no 'Go to jail, lose your child rule' in California" (In re S.D. (2002) 99 Cal.App.4th 1068, 1078), nonetheless, Welfare and Institutions Code section 361.5, subdivision (b)(12), allows the court to bypass reunification services where the parent has committed a "violent felony" pursuant to Penal Code section 667.5, subdivision (c), and where the parent has not established by clear and convincing evidence that reunification would be in the best interests of the child. (Welf. & Inst. Code, § 361.5, subd. (c).) Welfare and Institutions Code section 361.5, subdivision (b)(12), "represents a reasonable and rational means to advance a prime purpose of juvenile court law—providing protection and stability to dependent children in a timely fashion—by efficiently allocating scarce reunification services." (In re Joshua M., supra, 66 Cal.App.4th at p. 473, 78 Cal.Rptr.2d 110.)
Because it appears that the juvenile court failed to consider the four criteria in determining the best interests of the child, there simply was not "clear and convincing evidence" that reunification was in Minor's best interests, or any evidence that reunification was "possible." (In re William B., supra, 163 Cal.App.4th at p. 1229.)
III
DISPOSITION
The judgment is reversed. The trial court is directed to conduct a new hearing at which it shall specifically determine whether granting services to Father is in the best interests of the child in accordance with this opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P.J.
We concur:
KING
J.
MILLER
J.