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A.M. v. The Superior Court

California Court of Appeals, Fifth District
Aug 9, 2023
No. F086390 (Cal. Ct. App. Aug. 9, 2023)

Opinion

F086390

08-09-2023

A.M., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.

A.M., in pro. per., for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Real Party in Interest.


NOT TO BE PUBLISHED

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Amythest Freeman, Judge. Super. Ct. No. 23CEJ300067-1

A.M., in pro. per., for Petitioner.

No appearance for Respondent.

Daniel C. Cederborg, County Counsel, and Lisa R. Flores, Deputy County Counsel, for Real Party in Interest.

OPINION

THE COURT [*]

Petitioner A.M. (father), in propria persona, seeks an extraordinary writ (Cal. Rules of Court, rules 8.450-8.452) from the juvenile court's dispositional order bypassing him for reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(6) (severe sexual abuse), as to his daughter L.M. (born April 2012). He requests this court return L.M. to his care or grant him custody, and that the court vacate the order designating a specific placement after termination of parental rights. Father's request to vacate the order designating a specific placement after termination of parental rights is premature as parental rights have not yet been terminated. We deny the petition.

All rule references are to the California Rules of Court.

All statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL SUMMARY

Petition and Detention

On March 20, 2023, the Fresno County Department of Social Services (department) filed a petition on behalf of then 10-year-old L.M. pursuant to section 300, subdivisions (a) (serious physical harm), (b)(1) (failure to protect), and (d) (sexual abuse). In regard to the serious physical harm allegation, the petition alleged father would hit her, especially while intoxicated, leaving marks and bruises on her. L.M. reported she was terrified of father and did not feel safe at home. As to the failure to protect and sexual abuse allegations, the petition alleged father had a substance abuse problem with alcohol and marijuana and he sexually abused L.M. She reported he sexually abused her at least seven times per month. She said father would cuddle with her after showers, place his hand in between her breasts, and she could feel his penis on her back. He also made her take off all of her clothes and applied hair removal cream on her legs. Father had sole custody of L.M. and mother did not have any contact with her. L.M. was placed with paternal cousins.

On March 22, 2023, at the detention hearing, the juvenile court ordered L.M. removed from father's custody, found visitation with him would be detrimental, and set a combined jurisdiction and disposition hearing.

Jurisdiction and Disposition

In its jurisdiction and disposition report, the department recommended the allegations be found true, L.M. be placed in out-of-home placement, mother be bypassed for reunification services, father be bypassed for reunification services pursuant to section 361.5, subdivision (b)(6) (severe sexual abuse), and that a section 366.26 hearing be set. The department held a family reunification panel on behalf of father to review the appropriateness of providing him with reunification services. The panel concluded father met the criteria for bypassing him for services pursuant to section 361.5, subdivision (b)(6). Additionally, it determined it would not benefit L.M. to provide father with reunification services and considered several factors in doing so. For instance, L.M. likely suffered emotional trauma due to the sexual abuse and being hit. Moreover, father had continuously denied the allegations and stated L.M. had falsified the allegations as a form of" 'acting out.'" It also considered that L.M. reported she was afraid of father and did not want to return to his care.

On April 25, 2023, the juvenile court held a combined jurisdiction and disposition hearing. Father submitted as to jurisdiction, but requested reunification services and a contested disposition hearing. The court found the allegations true and set a contested hearing.

On June 1, 2023, the juvenile court held the contested disposition hearing. Father's counsel confirmed he was not contesting jurisdiction and was only contesting disposition. Father testified that approximately in March 2021, he began a romantic relationship with his girlfriend, Rheanne. She and her children moved in with him and L.M. "pretty quickly." L.M. latched onto Rheanne immediately as she desired a mother figure. In August 2022, father and Rheanne ended their relationship and L.M. took the separation "pretty hard." He said she had also taken his separation from his previous girlfriend "very hard," and required counseling after that separation. After his separation from Rheanne, he called L.M.'s school and requested counseling services for her again, which the school did provide. He testified that after the separation from Rheanne, L.M. became defiant and began lying a lot, stealing, refusing to do her chores, and getting in trouble at school. Father would ground her by taking away things. He said he had taken away her electronic tablet because she was communicating inappropriately with a boy and looking at "inappropriate stuff." Father had told L.M. he would buy her a cell phone for her birthday, but then changed his mind as a result of her troublesome behavior. L.M. became very upset and the following day she spoke to a counselor and made the allegations against father. Father believed he would benefit from reunification services. He had already begun parenting classes and domestic violence classes on his own. On cross-examination, father testified two young cousins had previously lived with him and L.M., and one of the cousins had inappropriately touched her.

In ruling, the juvenile court noted L.M. had provided statements to several different agencies, including the police, the department, and the Multidisciplinary Interview Center (MDIC), and her statements had remained consistent. The court found father's statements of denial concerning. Father and L.M. had significantly different descriptions of their home life. Ultimately, the court found there was clear and convincing evidence that reunification services would not be beneficial. Father was bypassed for reunification services pursuant to section 361.5, subdivision (b)(6), and the court set a section 366.26 hearing for September 21, 2023.

On June 5, 2023, father filed a notice of intent to file a writ petition.

DISCUSSION

As a preliminary matter, we address the adequacy of father's writ petition. Rule 8.452 sets forth the content requirements for an extraordinary writ petition. "The petition must be liberally construed and must include: [¶] (A) The identities of the parties; [¶] (B) The date on which the superior court made the order setting the hearing; [¶] (C) The date on which the hearing is scheduled to be held; [¶] (D) A summary of the grounds of the petition; and [¶] (E) The relief requested." (Rule, 8.452(a)(1)(A)-(E).) Additionally, "[t]he petition must be verified," and it "must be accompanied by a memorandum." (Rule 8.452(a)(2)-(3).) In keeping with rule 8.452(a)(1), we liberally construe a writ petition in favor of its adequacy where possible, recognizing that a parent representing him or herself is not trained in the law. Nevertheless, the petitioner must at least articulate a claim of error and support it by citations to the record. Failure to do so renders the petition inadequate in its content and the reviewing court need not independently review the record for possible error. (In re Sade C. (1996) 13 Cal.4th 952, 994.)

Father's writ petition is inadequate because he failed to list the relief being sought or articulate a claim of error. Rather, he argues that the facts he provided in the writ petition were intentionally left out of the juvenile court's review and that his testimony was manipulated and misinterpreted. We conclude father's writ petition is inadequate for review. Nevertheless, we reviewed the record for possible errors and found none. The record supports the court's finding to bypass father for reunification services.

"Section 361.5, subdivision (b) contains several reunification 'bypass provisions' permitting (or, in some cases, requiring) a court to deny a parent reunification services. [Citations.] Once the juvenile court determines by clear and convincing evidence that a case presents one of the situations set forth in section 361.5, subdivision (b), 'the general rule favoring reunification is replaced by a legislative assumption that offering [reunification] services would be an unwise use of governmental resources.'" (In re Christopher L. (2020) 56 Cal.App. 5th 1172, 1189.) Here, father met the bypass provision under section 361.5, subdivision (b)(6), because he sexually abused L.M.

"If, as occurred here, a bypass provision is found to apply, a juvenile court 'shall not' order reunification unless the court makes certain countervailing factual findings. (§ 361.5, subd. (c)(2).) The countervailing factual finding necessary to support reunification services here would be a finding 'by clear and convincing evidence ... that reunification is in the best interest of the child.'" (In re Christopher L., supra, 56 Cal.App. 5th at p. 1189.) "In determining whether reunification services will benefit the child pursuant to paragraph (6) or (7) of subdivision (b), the court shall consider any information it deems relevant, including the following factors: [¶] (1) The specific act or omission comprising the severe sexual abuse or the severe physical harm inflicted on the child .... [¶] (2) The circumstances under which the abuse or harm was inflicted on the child .... [¶] (3) The severity of the emotional trauma suffered by the child .... [¶] (4) Any history of abuse of other children by the offending parent ._ [¶] (5) The likelihood that the child may be safely returned to the care of the offending parent ... within 12 months with no continuing supervision. [¶] (6) Whether or not the child desires to be reunified with the offending parent ...." (§ 361.5, subd. (i)(1)-(6).) Here, the sexual abuse was inflicted by father while she was under his care, L.M. likely suffered emotional trauma as a result of the sexual and physical abuse, father continuously denied the allegations, and L.M. did not want to return to his care. Accordingly, the juvenile court did not abuse its discretion in finding that reunification services would not benefit L.M. (In re A.E. (2019) 38 Cal.App.5th 1124, 1140-1141.)

DISPOSITION

The petition for extraordinary writ is denied.

[*] Before Smith, Acting P. J., Snauffer, J. and DeSantos, J.


Summaries of

A.M. v. The Superior Court

California Court of Appeals, Fifth District
Aug 9, 2023
No. F086390 (Cal. Ct. App. Aug. 9, 2023)
Case details for

A.M. v. The Superior Court

Case Details

Full title:A.M., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent…

Court:California Court of Appeals, Fifth District

Date published: Aug 9, 2023

Citations

No. F086390 (Cal. Ct. App. Aug. 9, 2023)