Opinion
D060262
01-19-2012
In re FAITH L., et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. DAVID R., Objector and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SJ2568AB)
APPEAL from findings and orders of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Affirmed.
David R. appeals a juvenile court order denying family reunification services to him under Welfare and Institutions Code section 361.5, subdivision (e). We affirm.
Unless otherwise specified, all statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
David R. is the father of D.R., born March 2010, and the statutorily presumed father of Faith L., born March 2005. The children's mother is Andrea S. The children came to the attention of the San Diego County Health and Human Services Agency (Agency) in May 2011 after David and Andrea were arrested on charges of child cruelty and being under the influence of narcotics. Andrea was also arrested on charges of harboring a fugitive.
Andrea does not appeal and is mentioned only when relevant to the issues raised on appeal.
David had numerous arrests and convictions for narcotic-related crimes and violent felonies. He was convicted of assault with a deadly weapon on a police officer, as well as firearm priors, and was a documented gang member. David was a fugitive with three outstanding felony warrants for his arrest. On April 29, 2011, task force officers assigned to the Pacific Southwest Regional Fugitive Task Force failed to apprehend David when he fled from Andrea's car after police signaled for her to stop. The children were with their parents in the car when David fled. Faith later told the social worker, "My dad jumped out of my mom's car and my mom said 'run, run'. Then the police said get over here before I shoot you. I was so scared."
On May 11, a U.S. Marshal advised a detective with the FBI's Violent Task Force Gang Unit, that Andrea, David and a small child were preparing to enter Andrea's car. The detective stopped his vehicle in front of Andrea's car, and drew his handgun, pointing it in David's general direction. David was holding one-year old D.R. David turned D.R. toward the detective, who was unsure if David was trying to use D.R. as a human shield. David quickly placed his son in the rear seat of Andrea's car and took several steps away from the detective. When the detective ordered him to get on the ground, David turned in another direction. The detective was concerned David would enter the car in which he had placed D.R. To prevent him from further endangering his son, escaping or obtaining a weapon, the detective used a Taser on David, temporarily disabling him.
When arrested, David tested positive for methamphetamine. Andrea admitted she had used methamphetamine before she drove to pick up D.R. from David, who had been caring for their son.
David accepted a plea agreement to serve nine years eight months in lieu of a 25 to life sentence. His sentencing hearing was scheduled for June 23, 2011.
The record does not indicate the offense or offenses to which David pleaded guilty.
The jurisdictional and dispositional hearings were held on June 7, 2011. The Agency recommended that the juvenile court deny family reunification services to David. The juvenile court sustained the petitions under section 300, subdivision (b), removed the children from parental custody and ordered a plan of family reunification services for Andrea. The court found that providing reunification services to David would be detrimental to the children, and denied reunification services to David under section 361.5, subdivision (e)(1).
DISCUSSION
David contends the juvenile court erred when it denied family reunification services to him under section 361.5, subdivision (e). He argues insufficient evidence supports the juvenile court's findings that providing reunification services to David would be detrimental to the children due to David's current prison sentence and his lengthy criminal history. David asserts the children were not aware of his drug use and criminal activities. He maintains that his criminal and drug history did not prevent him from providing his children with a stable and caring environment, supporting them financially and emotionally, and establishing a mutual bond.
Family reunification services play a critical role in dependency proceedings. (In re Alanna A. (2005) 135 Cal.App.4th 555, 563.) "There is no 'Go to jail, lose your child' rule in California." (In re S.D. (2002) 99 Cal.App.4th 1068, 1077.) If the parent is institutionalized, the juvenile court is required to order reasonable services to that parent unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. (§ 361.5, subd. (e)(1).) "In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the length and nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered and . . . , the likelihood of the parent's discharge from incarceration or institutionalization within the reunification time limitations described in subdivision (a), and any other appropriate factors." (Ibid.)
For sibling groups with one child under the age of three, as here, the reunification period may be limited to six months from the dispositional hearing, but no longer than 12 months from the date the children entered foster care. (§ 361.5, subd. (a)(1)(A), (B).)
The record shows that David has a history of drug use, including heroin and methamphetamine. He was first incarcerated when he was 17 years old. At age 19, he was convicted of grand theft auto and served a one year sentence. According to law enforcement officers, David had numerous arrests and convictions for narcotic-related crimes and violent felonies, and had been convicted of assault with a deadly weapon on a police officer. At age 21, David was incarcerated for more than five years.
When David was released from custody in 2008, he met Andrea, who also had a history of substance abuse, including methamphetamine abuse, and drug-related criminal convictions. Faith was three years old. D.R. was born in March 2010. David was incarcerated from July 2010 to March 2011. Within six weeks of his release on bail in March 2011, David had three felony warrants for his arrest. He was arrested on May 11 and was to remain in prison until approximately January 2021.
The record does not indicate the felony charges.
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David argues his circumstances are comparable to the parent in In re Brittany S. (1993) 17 Cal.App.4th 1399, 1402-1403 (Brittany S.), who had a history of substance abuse and criminal convictions, and was sentenced to serve eight years in prison. Brittany S. does not assist David here. It is not on point. In Brittany S., the juvenile court ordered a plan of reunification services and terminated services at the 12-month review hearing. The parent appealed from the findings and orders made at the 12-month hearing. The appellate court reversed, finding that the parent had not been provided reasonable services. (Id. at p. 1407.) Thus Brittany S. does not address the reasons why the parent was provided family reunification services, and does not indicate whether the court was asked to make a determination under section 361.5, subdivision (e).
However, Brittany S. can also be distinguished on the facts. In that case, there is no indication the parent's criminal activities placed her child at risk of serious physical harm or death. Here, in contrast, David exposed his children to the possibility of grievous harm when he fled from law enforcement while one or more of his children were present on two occasions within two weeks time.
Further, there is overwhelming evidence to support the juvenile court's findings that providing reunification services to David would be detrimental to the children. Applying the factors listed in section 361.5, subdivision (e)(1), the record shows that the children were young. David would not be released from prison until Faith was almost 17 years old and D.R. was almost 12 years old. The record permits the reasonable inference that David did not have a bonded relationship with his children due to his absence from their lives and substance abuse. David had D.R. in his care while he was under the influence of methamphetamine. Further, there is no indication in the record to show that the children would suffer detriment if reunification services were not offered to David. David's criminal history included narcotic-related crimes and violent felonies. The record permits the reasonable inference David was not amenable to rehabilitation. Finally, there is no likelihood that David would be released within the reunification time limitations described in subdivision 361.5, subdivision (a)(1)(A), (B).
By engaging in violent criminal conduct and placing his children in harm's way, David abandoned his role as a parent. (In re T.R. (2005) 132 Cal.App.4th 1202, 1211.) His lengthy incarceration would prevent reunification within the most extended time frame allowed under the dependency framework. (See § 366.22, subd. (b).) This appeal is without merit and should have been filed under In re Sade C. (1996) 13 Cal.4th 952.
DISPOSTION
The findings and orders are affirmed.
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O'ROURKE, J.
WE CONCUR: ____________
McCONNELL, P. J.
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HUFFMAN, J.