Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Marilyn Kading Martinez, Juvenile Court Referee., L.A. Super. Ct. No. J989469
Los Angeles Dependency Lawyers, Inc.; Law Office of Emma Castro, Ellen L. Bacon and Wayne Morrow for Petitioner.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Deputy County Counsel, for Real Party in Interest.
No appearance for Respondent.
KRIEGLER, J.
A.S., father of An.S., born February 1994, Ah.S., born April 2002, and Ar.S., born June 2003, petitions for extraordinary relief pursuant to rule 8.452 of the California Rules of Court. Father seeks to overturn the dependency court’s order denying him reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(11). We hold reunification services were properly denied under section 361.5, subdivision (b)(10) and deny the petition.
Only Ah. and Ar. are the subject to this petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
Ah. and Ar. were declared dependents of the court in 2003, along with three of their siblings. The dependency court terminated reunification services for father in June 2004.
We grant the Department’s unopposed motion for judicial notice of the minute order and reporter’s transcript dated June 14, 2004, in which reunification services were terminated as to father.
On April 6, 2007, the Department of Children and Family Services received a call on the Child Protection Hotline which alleged that An., Ah. and Ar. were being neglected by their mother, R.H. In response to the report, two social workers and two sheriff’s deputies went to mother’s residence. They observed marijuana and a 24-ounce can of Old English beer on the bed post directly above a step-sibling of father’s children. Ah. was asleep on a bunk next to the bed on which her step-sibling was sleeping. The residence was very dirty. A social worker observed roaches on the walls, beer cans and dirty dishes in the sink, and trash on the floor. There were large plastic bags of clothes in the room on the floor and on the bed where Ah. was sleeping. Ar. had on dirty clothes and shoes, and had dried food all over his mouth. An. had clothes on which were too big for him.
Mother is not a party to this petition.
Mother stated that no one in the home smokes marijuana. However, she admitted that Ar. was born drug addicted. Father was not present at the time the authorities inspected mother’s home because he was incarcerated in state prison.
On April 11, 2007, a petition was filed alleging that Ah. and Ar. fell within the provisions of section 300, subdivision (b). The dependency court found father to be the alleged father of Ah. and Ar. and ordered the children detained.
On June 1, 2007, a jurisdiction/disposition hearing was held. Mother stated that she had been married to father for ten years and domestic violence occurred during their relationship. Father had sold illegal drugs out of the house during the marriage. Ah. and Ar. were declared wards of the court and were ordered suitably placed with a caretaker. Family reunification services were ordered for the parents.
On June 15, 2007, a first amended petition was filed which alleged that Ah. and Ar. came within the provisions of section 300, subdivisions (b) and (j). Father was not named in the petition. The petition alleged that mother had a history of drug abuse and her children were prior dependents of the court due to mother’s substance abuse. The dependency court found by clear and convincing evidence that Ah. and Ar. should be removed from the physical custody of the parents because there was a substantial danger to their mental and physical health if they remained in the parents’ home. Thereafter, mother plead no contest to the amended petition. The dependency court ordered a dispositional plan consisting of family reunification services to mother but denied such services to father because he was merely an alleged father.
On December 14, 2007, the Department filed a status review report in preparation for a hearing pursuant to section 366.21, subdivision (e), which recommended termination of reunification services to mother. The dependency court found clear and convincing evidence that mother had failed to participate regularly in the court-ordered treatment plan. Reunification services were terminated as to mother. The dependency court ordered the Department to complete due diligence on mother and father, and set a section 366.26 hearing.
On March 21, 2008, the Department filed an interim review report in which it advised the dependency court for the first time that father was incarcerated and was set to be released in May 2008.
On May 9, 2008, the Department prepared a section 366.26 report in which it confirmed that it had notified father in person about the hearing. Father stated that he wanted to participate in the court hearing. The report indicated that both children had resided in the home of their maternal great cousin since April 6, 2007. The children are happy in her home, appear to be well adjusted to living there, and the cousin was willing to adopt the children if reunification services are not successful with the parents. The children had bonded with the cousin, she was the proper person to adopt the children, and it was recommended that mother’s and father’s parental rights be terminated.
On June 23, 2008, father’s attorney filed a section 388 petition seeking presumed father status of Ah. and Ar., and to take the section 366.26 hearing off calendar. Father alleged he had been deemed a presumed father in the prior case brought by the Department involving all his children. Father attached a minute order from the prior case to support his claim. Birth certificates for Ah. and Ar. listed father as the biological father.
The dependency court ordered the Department to prepare a supplemental report to address father’s status and contact with the children, and make recommendations concerning father’s section 388 petition. Father was allowed monitored visitation with the children by telephone and in person while he was incarcerated. In complying with the dependency court’s order, the Department spoke to the children regarding their relationship with father. Ah. stated that she remembered seeing her father one time and that they ate cereal together. She also remembered that father’s name was the same as her brother, Ar. Ar. was not able to make any comments about father. Both children stated they would like to see their father.
The Department also spoke to the caregiver about father’s relationship with Ah. and Ar. She had known father for approximately 12 to 14 years. He is the biological father of both children. She knew that he was around the home and the mother, while she was pregnant with Ah. and when mother delivered the child. She observed that father spent time with the mother and Ah. for approximately four to six months and then was incarcerated for three years. After father was released from prison, both he and mother began new relationships and father did not live with the children. However, he did bring toys to the children for holidays. Once the children were placed with the caregiver, father did not attempt to call or visit them. The caregiver expressed concerns about the way father treats the two children. He has always maintained that Ar. is not his child and that he “cherishes” Ah., his only daughter, while denying Ar.’s paternity.
The caregiver agreed to take the children to the prison for the court-ordered monitored visits. However, she maintained that she had not done so because the prison will only allow one child to visit father at a time. She stressed that it was not “fair” for father to visit with only one child at a time. The Department clarified that father could have two visitors. After being provided this information, the caregiver expressed her concerns that father had “disrespected” her in the past and about father’s statement about the parentage of Ar. However, she agreed to take the children for the monitored visits on Sundays.
Father’s conversations with the Department confirmed much of what was said by the caregiver. He did not spend time with the children due to his problems with mother. He also explained that about three months after Ah. was born, he went to prison from 2003 to 2005. After he was released, he moved in with a different woman and attempted to keep in contact with the children, but was incarcerated again in October 2006. He also stated that he was released but was arrested again in February 2007, and has been in prison ever since. When he was arrested, the police found a small knife in his car; and due to his “past problems with the police,” he was immediately taken to jail. He would like to care for his children. When he is released, he will move in with his current girlfriend who reported that she will be able to help him with his children’s needs. However, the Department spoke with father’s current girlfriend who said she would not be able to assist father in caring for his children’s basic needs because of her obligations for her own children.
On September 12, 2008, the dependency court granted father’s section 388 petition and determined that he was the presumed father of the children. It set aside the section 366.26 hearing and set a jurisdiction/disposition hearing for October 28, 2008. The dependency court also ordered the Department to ensure the children’s visits with father and to make arrangements for visits with him while he was in custody. Further, it ordered the Department to evaluate liberalizing visits and possible placement, and to arrange a telephone schedule with father and the children for once or twice a week. In addition, the dependency court ordered the caregiver to make her telephone number available so that father could call the children.
On October 28, 2008, the Department presented its interim review report to the dependency court. The caregiver reported that she had her telephone available on Sundays at any time in order to facilitate father calling the children, but he never called. She also stated that if a paternal aunt would assist her, she would take the children to visit their father in prison. The paternal aunt agreed to assist with the visitation. The Department’s report concluded by recommending that the children remain dependents of the court, that the Department have continued discretion to liberalize visits with father, and recommended a plan for adoption with the caregiver.
On November 25, 2008, the Department filed another interim review report. With regard to father, the Department recounted that he had a lengthy criminal history dating back to June 1979, which included arrests and/or convictions for assault on a prisoner, criminal threats, driving with a suspended license, possession of marijuana for sale, reckless driving, battery, carrying a concealed weapon, robbery, burglary, kidnapping, carjacking, and taking a vehicle without the owner’s consent. These offenses resulted in grants of probation, local jail time, and state prison sentences.
Father was presently incarcerated due to driving a vehicle with an expired license, which resulted in discovery of a knife during the search of the car. Father was referred to a mental health treatment program and met the criteria mandated for that program. He has also been prescribed psychotropic medication and assigned to a substance abuse program. He did attend daily drug counseling groups but did not pursue other available programs while incarcerated, such as parenting and anger management courses. The report reiterated that it was in the best interests of the children to continue living with the caregiver, to remain dependents of the court, to allow the Department to have discretion to liberalize visits with father, and to formulate a plan of adoption with the caregiver.
On February 2, 2009, the dependency court ruled it would be detrimental to release or return the children to father. The dependency court found by clear and convincing evidence pursuant to section 361.5, subdivision (b)(11), that no reunification services be ordered for father. The dependency court stated:
“I look at the bypass statute and I find by clear and convincing evidence pursuant to [section] 361.5[, subdivision] (b)(11) that these children and siblings have been before this court; that these children have been provided with family reunification services with regard to [father];that the court terminated reunification services for these children and [father], and that [father] has not verified that he has made a reasonable effort to address the issues and correct the concerns that led to the other children being before this court and not being in his custody. [¶] [Father’s] request for custody is fundamentally flawed. He failed his children previously before this court. The fact that the children are again here due to mother’s wrongdoing ought not give [father] another opportunity to claim to be a non-offending, non-custodial father such that he should have custody pursuant to [section] 361.2.” ~(RT 57-58.)
The dependency court stressed that father had never complied with the previous plan of reunification for his other children and had, in fact, not participated in most of the programs which would demonstrate to the dependency court that he was a responsible parent and should be given either custody of Ah. and Ar. or reunification services. This petition followed.
DISCUSSION
“A court reviews an order denying reunification services under section 361.5, subdivision (b) for substantial evidence. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600.)” (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96, fn. omitted.)
“There is a presumption in dependency cases that parents will receive reunification services. (Riverside County Dept. of Public Social Services v. Superior Court (1999) 71 Cal.App.4th 483, 487.) Section 361.5, subdivision (a) directs the juvenile court to order services whenever a child is removed from the custody of his or her parent unless the case is within the enumerated exceptions in section 361.5, subdivision (b). (Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181, 1188.) Section 361.5, subdivision (b) is a legislative acknowledgement ‘that it may be fruitless to provide reunification services under certain circumstances.’ (Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 750.)” (Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at pp. 95-96.)
Section 361.5 provides in part as follows: “(b) Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶]... [¶] (10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian.”
It is undisputed that reunification services as to father were terminated in June 2004 as to dependency proceedings involving siblings of Ar. and Ah. After reunification services were terminated, father failed to make a reasonable effort to treat the problems that existed in the prior dependency proceeding.
Specifically, he failed to complete programs on domestic violence, drug addiction, parenting, and anger management. Father had been incarcerated for much of the time between the termination of reunification services in the prior case and the disposition hearing in the present action. This constitutes substantial evidence that father failed to establish that he made any meaningful attempt to cure the problems evident in the prior dependency, and he therefore was not entitled to reunification services pursuant to section 361.5, subdivision (b)(10).
It is of no moment that the dependency court referenced section 361.5, subdivision (b)(11) in making its ruling denying reunification services. It appears the dependency court merely misspoke in describing the pertinent subdivision, as its comments clearly refer to the criteria stated under subdivision (b)(10). The dependency court’s contemporaneous comments reflect that its ruling was premised upon subdivision (b)(10), and father does not seriously contend otherwise. Reunification services were properly denied.
DISPOSITION
The petition is denied. This opinion shall become final immediately upon filing. (Cal. Rules of Court, rule 8.264(b)(3).)
We concur: TURNER, P. J., ARMSTRONG, J.