Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for extraordinary writ Super.Ct.No. RIJ101740, Bradley O. Snell, Judge. Petition granted.
Marla C. Mahoney for Petitioner.
No appearance for Respondent.
Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Real Party in Interest.
OPINION
HOLLENHORST, Acting P. J.
INTRODUCTION
This petition involves the trial court’s refusal to grant a continuance to B.P. (father) before holding the jurisdictional/dispositional hearing for the minor, J.L., and then ordering that reunification services be denied to father pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(10). We find that father should have been given a short continuance and that, in any event, the evidence does not support the order denying services.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The minor was born in December 2007, and a dependency petition was filed on December 19, 2007. Mother admitted using methamphetamine during her pregnancy, and both she and J.L. tested positive after the baby was born. She had previously had her parental rights to J.L.’s four half siblings terminated. She was alleged to have both mental health issues and an “extensive criminal history.” The minor appeared to have Down syndrome and cardiac problems were suspected.
As mother did not contest the denial of services to her, information concerning mother will be generally limited to that relevant to father’s participation in the matter.
At that time, mother told the social worker that she did not know who the father of J.L. was and signed a declaration to that effect. However, in early January 2008, the social worker was told by the owner of the home where mother was living that the owner’s son, B.P., might be the biological father of J.L. and had in fact accepted the child as his own. The social worker asked B.P.’s mother to tell him to contact the social worker, but he had not done so when the social worker’s report was filed on January 7, 2008. On the initial hearing date of January 10, the matter was continued to March 4 for a contested jurisdictional/dispositional hearing.
Mother had told the social worker that her pregnancy resulted from a “one-night stand” while she was under the influence of alcohol and that she had not seen the man since.
On January 22, 2008, the social worker filed an ex parte request for authority to have J.L. undergo specified medical procedures related to his heart condition. This was accompanied by a form filled out by the minor’s physician, in which she noted, “I have told father since he was at bedside about the procedure but he does not have power to consent.” However, the social worker apparently did not further pursue the issue of paternity although an addendum report filed on February 28 included a summary of hospital notes reflecting several visits by B.P.; the report also noted that when mother asked that B.P. be allowed to visit the minor at his foster placement, she was reminded that she had denied that B.P. was the father.
On March 4, 2008, however, B.P., was at least acknowledged in court; although he was not present, counsel was appointed for him and paternity testing was ordered. The matter was continued to April 14.
The record does not contain the reporter’s transcript of this hearing, so it is not clear how father was formally brought into the proceeding.
On April 9, 2008, the social worker filed another addendum. She first recommended that father be given “presumed father” status, but also that he be denied reunification services. The social worker had spoken to father on April 7, at which time he indicated that he believed mother had received prenatal care and that he had himself viewed ultrasound or sonogram pictures of the fetus. He confirmed that he was present when the minor was born at home. Father also said that he had initially been unsure whether the minor was his child, but now thought there was a clear resemblance. Father was currently working in construction when work was available and was taking computer classes online. He was attempting to pay off “thousands of dollars” in medical bills, “slowly.”
Father also admitted that he had served two prison terms involving methamphetamine with his latter conviction occurring in August 2000, but stated that he had given up drugs and been clean for about two years. Father has five other children from three relationships and had a history with child protective services with respect to three children from his (undissolved) marriage. A dependency that begun in 1996 was terminated in 1999 after father and his wife completed their service plans successfully, but new proceedings were instituted in 2005 due to the mother’s drug use. (Apparently, she had physical custody, with father visiting regularly.) Although father, at that time, told the social worker that he did not see why he needed to complete more services because 1) he had completed everything required during the first dependency, and 2) he was not the reason for the second petition or the fact that he and the mother were ordered to participate again. Father did not do so and services were terminated as to him. However, the mother duly completed her plan and again regained custody of the children; eventually, the dependency was terminated.
The social worker’s recommendation that father be denied services was based upon section 361.5, subdivision (b)(10): “[t]hat the court ordered termination of reunification services for any siblings or half siblings of the child because the parent . . . failed to reunify . . . and that, according to the findings of the court, this parent . . . has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling . . . .” Her report commented that father’s “commitment and progress has been found to be minimal in the past.”
This statement is misleading, as the previous summary of father’s dependency history makes clear. The report also includes perplexing statements such as “The child . . . is currently suffering from congenital heart failure due to his mother’s irresponsible and selfish behavior” and also included father in an accusation of “recent current substance abuse,” although there was no such evidence with respect to father.
At the time set for hearing on April 14, 2008—five days after the report recommending that services be denied as to father was filed—father appeared both personally and through counsel. At that time, the Riverside County Department of Social Services (the department) filed an amended petition, which for the first time named father and included allegations of past criminal and dependency history as the basis for jurisdiction. Counsel requested a “short continuance,” explaining that she had just received the most recent report that morning. She asked that father be given time to submit to a “hair-follicle test” to establish his current abstention from illegal substances. Noting that the petition was filed four months previously, and “based upon the history of both parents and the fact that [father’s counsel] was appointed on the last appearance date,” the court found no good cause for the requested further delay.
The court eventually sustained all allegations. The jurisdictional findings are not at issue here.
The hearing proceeded with stipulated testimony from both parents. Father’s counsel told the court that father had been unaware that he needed to go to court until his visits with J.L. were cutoff, at which time he appeared at the next hearing to request a lawyer and a paternity test. Counsel explained that in the 2005 dependency proceedings concerning his other children, he had had difficulty complying with his plan due to his work schedule, and as the children’s mother was doing well and seemed likely to regain full custody (as she did), he did not pursue services according to his own plan. Father had no idea that his “failure” might lead to the future consequence of denial of services in another case. The court was also informed that father saw his other children frequently and had a good relationship with them.
The trial court, unmoved, denied services to both parents. It noted the medically fragile condition of the minor and also expressed concern that the parents “may have learned . . . how to attempt to circumvent the system.”
This referred to the fact that the minor was born at home, which the court hypothesized was an attempt by both parents to conceal the fact that mother had been using methamphetamine. The stipulated testimony presented by father was that when he arrived at the home, mother told him she was in labor and he immediately called an ambulance, which arrived two minutes after the child was born and transported both mother and child to a hospital.
DISCUSSION
Father’s first contention is that it was error to deny him a short continuance in which to prepare to rebut the recommendation that services be denied. The department concedes error, but argues that it was harmless. This question is intertwined with the sufficiency of the evidence to support the denial of services—father’s second argument.
Father relies on section 358, subdivision (a)(3), which provides that following a jurisdictional finding, “If the social worker is alleging that subdivision (b) of Section 361.5 [the denial of services provision] is applicable, the court shall continue the proceedings for a period not to exceed 30 days.”
In his reply, father argues over the legal authority under which a continuance should have been granted, but as the department concedes error we need not resolve the issue.
The department notes that father’s sole expressed reason for seeking a continuance was to supply a hair follicle sample to show that he did not have a substance abuse problem and argues that father’s possible current drug use was simply irrelevant to the legal basis for denying services—the termination of services in the past. We do not agree. As father argues in the second prong of his argument, denial of services under section 361.5, subdivision (b)(10), is only appropriate if services have previously been terminated and the parent has failed to make reasonable efforts to address the problems that led to the dependency. Insofar as his past history of drug use and related criminal behavior was relevant to the dependency of his other children, his current sobriety certainly was relevant to his efforts to address those issues.
The department also argues strenuously that father should have predicted that the department would recommend that he not receive services with respect to J.L. It would charge father with the knowledge that he would need to appear at the hearing prepared to establish not just his potential as a parent, but the inapplicability of section 361.5 subdivision (b)(10). Apparently, the department believes that father should have reached this conclusion from the fact that he was interviewed by the social worker a few days before the hearing and/or the fact that he had been involved in prior proceedings.
We might agree that father should have been generally familiar with dependency proceedings, but we decline to impute to him the specific knowledge that he was likely to have services denied. In our view, it would be wholly inappropriate to charge father with such knowledge in order to excuse the court’s failure to allow the continuance to which—as the department concedes—father was legally entitled.
However, that is not the only error committed by the trial court.
Father’s second argument is that there was insufficient evidence to support the implied finding—essential, as we have noted—that he had failed to address the problems leading to the 2005 dependency of his other children. We acknowledge that a ruling pursuant to subdivision (b) of section 361.5 is reviewed under the “substantial evidence” standard and that “we examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defer to the lower court on issues of credibility of the evidence and witnesses.” (In re Albert T. (2006) 144 Cal.App.4th 207, 216.) However, the department has the burden of proving the facts supporting denial of services and this applies to the issue of the parent’s failure to make “reasonable efforts” under section 361.5, subdivision (b)(10). (In re Angelique C. (2003) 113 Cal.App.4th 509, 521.) The department was also required to present evidence at the “clear and convincing” level. (§ 361.5, subd. (b).)
In re Angelique C., supra, 113 Cal.App.4th 509, actually discusses section 361.5, subdivision (b)(11), which applies to a parent whose parental rights to another child have been terminated, but the “reasonable efforts” language is the same as in subdivision (b)(10).
According to the social worker’s report and the docket sheets in the 2005 proceedings, the allegations that were sustained as to father involved his past substance abuse and his criminal history. Thus, these are the issues that the department had to show father failed to address once services were terminated. (An allegation under § 361.5, subd. (b)(3) of the petition, that father “failed to protect” the children from the effects of mother’s substance abuse, was not sustained.) There was no evidence in the record that father currently abused any substance and, as we have noted above, the trial court did not allow father to try and obtain scientific evidence of his abstention. Although the trial court was not obliged to accept father’s stipulated testimony that he was maintaining a sober lifestyle, it is well established that the rejection of “A” does not constitute affirmative evidence of “B.” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1205.) In the complete absence of any evidence that father abused any substance, it simply cannot be said that the department carried its burden of proving that father had failed to successfully address this issue.
The department argues that father’s relationship with mother—whose recent substance abuse is not disputed—shows that he failed to correct the problem of entering into relationships with women who use drugs. But, that was not the problem that the dependency court adjudicated against father in the 2005 proceedings. Furthermore, there was no substantial evidence in the record concerning father’s awareness of mother’s drug use during pregnancy. Although father told the social worker that he “suspected that [mother] might be using drugs by the friends she kept,” he also told the social worker that he “talked to [mother] about it. She denied it. She didn’t let on that she was using.” Mother told the social worker that she stopped using methamphetamine as soon as she found out she was pregnant, only relapsing the day before J.L. was born. Even disbelief of this statement falls far short of “clear and convincing evidence” that mother used drugs on other occasions and that father was aware of it.
With respect to father’s past criminal history, the analysis is similar. The social worker’s report filed on April 9, 2008, detailed father’s “criminal history,” which showed that his last felony conviction was in 2000. It reflected a misdemeanor “hit and run” charge in August 2004 with no disposition, and several registration and licensing infractions in 2005 and 2007. Although the date father was released from prison is not clear, it is apparent that he has avoided serious entanglement with the law for over four years and has not been arrested on any charges involving controlled substances. None of the more recent minor charges appears to have interfered with his ability to parent. Thus, again the only evidence in the record supports the inference that father has taken reasonable and clearly effective steps toward becoming a law-abiding citizen.
Father reported that his driver’s license had been suspended for his failure to pay child support; as a result, he has been repeatedly cited for driving without a license.
He stated that he served 30 months for his 2000 conviction; thus, he was probably released in 2002 or early 2003.
We recognize that this case is procedurally peculiar because the allegations against father in 2005 did not involve any current misbehavior—only past substance abuse and criminality. One might argue that, as father asserted that he no longer needed services in 2005, his “efforts” predated the termination of services. However, we think it is fairer to accept the inference that his “reasonable efforts” to maintain sobriety and avoid criminality continued to the present. There is no requirement that “reasonable efforts” include formal program participation.
The authorities cited by the department are not persuasive. It is true that in Linda B. v. Superior Court (2001) 92 Cal.App.4th 150, 155, the court noted that once a parent fails to reunify with one child, the “‘general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources.’” But, this court has recognized that the “reasonable efforts” language “provides a means of mitigating an otherwise harsh rule that would allow the court to deny services simply on a finding that services had been terminated as to an earlier child when the parent had in fact, in the meantime, worked toward correcting the underlying problems.” (In re Harmony B. (2005) 125 Cal.App.4th 831, 842.) Although we have also observed that “a parent who has failed in one course of reunification services . . . is unlikely to succeed with a new round of services,” this is only remotely applicable in this case. (Riverside County Dept. of Public Social Services v. Superior Court (1999) 71 Cal.App.4th 483, 488.) Father succeeded in the 1996 dependency proceedings and his failure, or refusal, to participate in the 2005 proceedings, if not legally justifiable, was at least understandable in that he was not charged with any then-current neglect or unfitness. In these circumstances, we think it cannot be said that there is any presumption that father will not benefit from services.
However, the bottom line is that department failed to establish, by clear and convincing evidence, that father had not made “reasonable efforts” to address the issues that interfered with his ability to parent—substance abuse and criminal behavior leading to incarceration. The denial of services was not authorized by law.
DISPOSITION
The petition for writ of mandate is granted. Let a peremptory writ of mandate issue directing respondent court to authorize reunification services for father.
Petitioner is DIRECTED to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
We concur: McKINSTER, J., GAUT, J.