Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Super. Ct. No. RIJ1100140 Matthew C. Perantoni, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Anastasia M. Georggin for Petitioner.
No appearance for Respondent
Pamela J. Walls, County Counsel and Julie Koons Jarvi, Deputy County Counsel, for Real Party in Interest.
OPINION
RAMIREZ, P.J.
Petitioner A.H. (father) is the father of X.H., born earlier this year and detained shortly after birth. In this writ petition, father challenges the juvenile court’s orders denying him reunification services and setting a section 366.26 selection and implementation hearing for July 13, 2011. As discussed below, we cannot find that the juvenile court abused its discretion. This is because: 1) father made no effort until very recently to seek treatment for the problems that caused the removal of X.H.’s brother in 2001; and 2) it is not in X.H.’s best interest to pursue reunification with father because father plans to establish a family with X.H.’s mother, who was convicted of killing X.H.’s half sister in 2001.
Facts and Procedures
Hospital staff notified the Riverside Department of Public Social Services (department) soon after X.H. was born in late January 2011. X.H. was born healthy and full term, but her mother (mother) disclosed to hospital staff that mother had two children previously, one of whom had died in 2001after being assaulted, and another who resides with relatives. Mother identified father as X.H.’s father.
An investigation revealed that mother had been convicted of murdering her 16-month-old child, D.R., in 2001, for which she was sentenced to 25 years to life in prison. The autopsy showed that D.R. had been severely abused—she had numerous broken ribs and a lacerated liver and pancreas. D.R. had bled to death internally. The medical examiner concluded that the injuries were caused by massive blunt force to the abdomen.
Mother and father had an intimate relationship in 1997 and/or 1998, and they learned mother was pregnant with father’s child, M.H., either before or just after they broke up. Shortly thereafter, mother married another man, a Mr. Ramirez, who agreed to raise M.H. as his own. Mother and Mr. Ramirez then had D.R., whom mother beat to death in August 2001. Father was not involved in M.H.’s life until M.H. was removed in August 2001 after D.R.’s death. At that time, father was offered weekly supervised visitation with M.H., but father did not visit M.H. Father was termed an alleged father, and later the biological father, and was not offered reunification services.
At the time of D.R.’s death in August 2001, mother and Mr. Ramirez were no longer living together. In fact, mother sometimes stated that her then-boyfriend, a Mr. Lugo, had killed D.R.
After serving approximately eight years in prison, mother accepted a deal to reduce the charges to voluntary manslaughter and was released on parole a few months later, in November 2009. Mother and father resumed their intimate relationship in January 2010. Mother and father hoped to get married when mother’s divorce from Mr. Ramirez was final, and wanted to raise a family together.
The detention hearing was held on February 3, 2011, at which the juvenile court found a prima facie case to detain X.H.
The contested jurisdiction/disposition hearing was held on March 15, 2011. The Department recommended denying reunification services to father under Welfare & Institutions Code, section 361.5, subdivision (b)(11), because he had previously lost parental rights to X.H’s brother, M.H. The Department entered into evidence the amended section 300 petition filed on February 22, 2011, the detention report filed on February 2, the jurisdiction and disposition report filed on February 24, and the addendum filed on March 10.
All further section references are to the Welfare & Institutions Code unless otherwise indicated.
At the March 15 hearing, father testified that he had met with the social worker about two weeks prior to receive referrals for services. Since then he had completed three sessions of individual counseling, enrolled in a parenting class and completed two sessions of conjoint counseling. He had also visited weekly with X.H. and had only missed one visit because he did not want to pass on his cold to the infant. Father was present for X.H.’s birth and was named on the birth certificate. He had given money to mother to purchase items to prepare for X.H.’s arrival.
Father testified that he had fathered a total of seven children, and that he paid child support for all except for M.H., who had been adopted after father lost parental rights. He testified that his 17-year-old daughter lives in Fullerton and had stayed with him a few times on the weekends, most recently the previous week. Father has two children, ages 13 and 7, who live in Anaheim and with whom he does not have much contact because their mother, “don’t really want to comply with such.” Father stated he had spent “thousands and thousands of dollars in attorneys to fight for visitation and custody” and that, even with a court order, the mother would refuse to allow the children to go with him when he went to pick them up for visits. Father sees these children only when their mother feels like it, the last time about five months previous. Father speaks to the children once or twice per month on the telephone. Father has two children, ages four and eight, with another woman, with whom he has a good relationship and who live in Colorado. Father testified that these two children were going to stay with him for two and one-half months in the summer and that Father was paying for their transportation. The older child had previously come to stay with him for the summer, but this was the first time the youngest one would be coming. He speaks to them four or five times per week. When questioned on cross-examination, father knew the names, ages and grades of each of his seven children.
Regarding M.H., father testified that in 2001 he was eventually found to be the biological father, but was denied services. He did not seek services on his own because “I was so inexperienced at that time.” Father stated that he knew mother was pregnant with M.H. when they broke up. He testified that M.H. was born while mother and Mr. Ramirez were married, and that he never saw M.H. because the family moved out of the county with M.H. and he “lost track [of them] completely.” Father was initially named an alleged father, and later the biological father, but never the presumed father. Father stated that he would do “anything” if the Department were to offer him reunification services for X.H., including following the reasonable directives of the social worker. Father believed that he made reasonable efforts in this current case.
After hearing argument, the juvenile court noted its sympathy for father and stated that “He seems like a decent human being who testified well, and I have no doubt loves his daughter.” However, the court stressed its concern that father planned to continue his relationship with mother, despite her conviction for having killed her toddler in 2001. For this reason, the court could not find that it would be in X.H.’s best interest to grant services to father. The court set the section 366.26 hearing for July 13, 2011, and advised father of his writ writs. This petition followed.
Discussion
1. Denial of Reunification Services Under Section 361.5, subdivision (b)(11) and Best Interest Analysis Under Section 361.5, subdivision (c).
Father first argues the juvenile court abused its discretion when it denied him reunification services under section 361.5, subdivision (b)(11).
“We affirm an order denying reunification services if the order is supported by substantial evidence. [Citation] ‘In making this determination, we must decide if the evidence is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the court’s order was proper based on clear and convincing evidence. [Citation.]’ [Citation.]” (In re Harmony B. (2005) 125 Cal.App.4th 831, 839-840.)
Section 361.5, subdivision (b)(11) provides that reunification services need not be provided when the parental rights of a parent over any sibling of the child have been permanently severed, and that the parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling. (§ 361.5, subd. (b)(11).) Father argues that he has made reasonable efforts to treat the problems that led to the removal of M.H. in August 2001. Specifically, father points to the fact that, at the time of the March 15, 2011, jurisdiction and disposition hearing, he had attended three individual and two conjoint counseling sessions, had enrolled in a parenting class, and had regularly attended his weekly visits with X.H. However, these efforts began only in 2011, nearly ten years after X.H.’s brother M.H. was removed from mother, and eight years after father lost his parental rights to M.H. While father’s testimony, if believed, indicates that he has tried to be a good parent to his other five children over the years, he simply made no effort to actually treat the problems that lead to M.H.’s removal—that is, his lack of involvement in M.H.’s life, which allowed M.H. to be exposed to a dangerous living situation that resulted in the death of his younger sister, D.R.
Father also briefly argues that the juvenile court abused its discretion when it failed to find that reunification would be in X.H.’s best interest.
Even when a juvenile court finds that the parental rights of a parent over any sibling of the child had been permanently severed, and the parent has failed to make reasonable efforts to address the reasons for the siblings’ removal, the juvenile court retains discretion to order reunification services if there is clear and convincing evidence that services would be in the child’s best interests. (§ 361.5, subd. (c).) Such a decision will not be disturbed on appeal unless the juvenile court abuses its discretion. (In re Ethan N. (2004) 122 Cal.App.4th 55, 65.) Father merely points out that his visits with X.H. were appropriate and that he assisted mother in preparing for X.H.’s arrival. This simply does not fulfill father’s considerable burden on appeal to show that the juvenile court abused its discretion when it failed to find by clear and convincing evidence that reunification would be in X.H.’s best interest. This is especially so because father does not even address the main reason for the juvenile court’s decision to deny him reunification services—that father is in a relationship with mother, who served time for killing her own toddler, and plans to establish a family with her. For this reason alone, we uphold the juvenile court’s decision to deny father reunification services on the basis that it would not be in X.H.’s best interest to attempt to reunite with a father who sees nothing wrong with X.H. having contact with the person who killed her half sister.
2. Denial of Services under Section 361.5, subdivision (a)—Conceded
Petitioner also argues, and the Department agrees, that the juvenile court erred when it denied him services pursuant to section 361.5, subdivision (a). This section requires the juvenile court to order reunification services to the mother and to the presumed father. It does not require services for a mere alleged father. Here, the juvenile court denied reunification services to father because he “is a person described by Welfare and Institutions Code section 361.5(a) and (b)(11).” However, a few minutes later the court clarified that father was a presumed father based on father’s name being listed on X.H.’s birth certificate. Thus, the trial court erred when it denied father reunification services based on his being only an alleged father. However, as discussed above, the order denying reunification services stands because it is correctly based on section 361.5, subdivision (b)(11).
Disposition
The writ petition is denied.
We concur: HOLLENHORST J., MILLER J.