Opinion
NOT TO BE PUBLISHED
Original proceeding; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County Super. Ct. Nos. J426904, J438287, DP013740, John C. Gastelum, Judge.
Juvenile Defenders and Donna P. Chirco for Petitioner.
No appearance for Respondent.
Benjamin P. de Mayo, County Counsel and Karen L. Christensen, Deputy County Counsel, for Real Party in Interest Orange County Social Services Agency.
Law Office of Harold LaFlamme and Mari Duque for Real Parties in Interest Justin M., Jazmin M., and Katey H.
OPINION
RYLAARSDAM, ACTING P. J.
Petitioner Carol M., mother of 17 year-old Justin M., 14 year-old Jazmin M., and 4 year-old Katey H., seeks extraordinary relief from an order denying her reunification services with her children and setting a permanency hearing under Welfare and Institutions Code section 366.26 (all further statutory references are to this code). She also requests us to stay the permanency hearing, scheduled for December 4, 2007. Mother contends the trial court erred in denying her services because she had successfully reunited with the minors and dependency was terminated in a prior dependency proceeding. Finding no error, we deny the petition and request to stay the permanency hearing.
FACTUAL AND PROCEDURAL BACKGROUND
Social services has contacted mother 10 times since 1992. This is the 11th child abuse report regarding mother and the third time the juvenile court has removed her children from her care.
In 1992, Ashley, now an adult half-sibling, and Justin were taken into protective custody after Justin was physically abused by mother’s then-boyfriend. Mother complied with her service plan, regained custody of the children, and the dependency was terminated.
In 1998, social services filed another dependency petition, this time on behalf of Justin and Jazmin. The petition alleged mother had struck Jazmin with a belt causing bruising, and that mother had drug abuse and mental health issues. The petition was sustained and mother received almost a year and a half of reunification services. In March 2000, the court terminated reunification services and set the case for a permanency hearing. It ordered Justin and Jazmin into long-term foster care.
Mother began attending a substance abuse program and was granted additional reunification services at the social worker’s recommendation. She regained custody of both Jazmin and Justin and their cases were terminated in 2005.
Nine months later, social services filed the current petition involving Justin, age 16, Jazmin, age 13, and Katey, age 3. The first amended petition alleged the minors’ residence was unsanitary and unhealthy, with a water pipe on the kitchen table within their reach, a dead reptile in the living room, a ripped and dirty tile floor, and piles of dirty clothing in a bedroom. Additionally, the minors were made to find cans and bottles from morning till evening without lunch. Further, Katey’s father, Chris, sexually abused Jazmin by penetrating her both vaginally and anally, struck her with a belt, causing bruising, tied her up and shocked her, forced her to eat jalepenos, and pointed a sword at her and threatened to kill her. He also threatened Justin’s life with a sword, choked and sat on him, and threw him against a wall. The petition alleged mother knew of the abuse yet failed to make efforts to protect the minors. The minors confirmed the allegations in the petition and were detained.
At the contested jurisdictional and dispositional hearing, the social worker recommended that no family reunification services be offered. Although mother was compliant with her case plan, the social worker was unsure mother had resolved the issues that led to the current dependency proceeding because mother had been given similar services twice before, yet ended up back in court with many of the same issues. Less than a year had elapsed after the last dependency terminated before the minors were again removed from mother’s custody. The social worker was concerned mother would repeat her “[p]attern of finding an abusive boyfriend or mate and not protect the children . . . .” This was based on the fact that in 1992 mother had failed to protect Justin from an abusive boyfriend resulting in the original dependency case. Then 15 years later, she again failed to protect her children from “horrific abuse” at the hands of another boyfriend.
After all witnesses had testified, the court found the allegations of the petition, as amended, to be true. It declared the children dependents of the court, ordered they be suitably placed, denied reunification services under section 361.5, subdivisions (b)(3) and (10), and set a section 366.26 permanency hearing.
DISCUSSION
Mother contends the court erred in denying reunification services under section 361.5, subdivisions (b)(3) and (10). We disagree.
“We affirm an order denying reunification services if the order is supported by substantial evidence. [Citation.]” (In re Harmony B. (2005) 125 Cal.App.4th 831, 839.) In applying the substantial evidence test, we presume the court made the proper order and consider the evidence in the light most favorable to the ruling. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880.)
Mother argues a de novo standard of review should be applied because the case involves an issue of statutory interpretation. No interpretation is necessary.
Under the plain language of section 361.5, subdivision (b)(3), “[r]eunification services need not be provided to a parent . . . when the court finds by clear and convincing evidence” that “the child or a sibling of the child has been previously adjudicated a dependent pursuant to any subdivision of Section 300 as a result of physical or sexual abuse, that following that adjudication the child had been removed from the custody of his or her parent . . . pursuant to Section 361, that the child has been returned to the custody of the parent . . . from whom the child had been taken originally, and that the child is being removed pursuant to Section 361, due to additional physical or sexual abuse.”
The evidence supports denial of services on this ground. Justin was adjudicated a dependent in the first dependency proceeding due to physical abuse perpetrated by mother’s boyfriend. Justin was returned and the first dependency terminated upon mother’s successful completion of reunification.
In the second dependency proceeding, Justin and Jazmin were removed from mother based upon her physical abuse of Jazmin. After almost a year and a half of reunification services, the court terminated reunification services and ordered Justin and Jazmin into long-term foster care. Despite this, mother received additional reunification services and Jazmin and Justin were returned. Nine months after the second dependency was terminated, a third petition was filed based on sexual abuse of Jazmin by Chris and his physical abuse of both Justin and Jazmin.
Mother relies on Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181 (Rosa S.) for the proposition that the court could not deny services here because this case involved a subsequent petition rather than a supplemental petition. Rosa S. is inapposite.
In Rosa S., the first dependency was due to the mother’s arrest on drug charges and child endangerment. (Rosa S., supra, 100 Cal.App.4th at pp. 1183-1184.) The second dependency was due to abandonment and renewed substance abuse. (Id. at p. 1184) The juvenile court denied services on the basis that the mother had already received 18 months of reunification services in a previous dependency proceeding in which she successfully reunified with her child. (Id. at pp. 1185-1186, 1188.) Rosa S. held this was error because the current dependency proceeding was a new proceeding, not merely a continuation of the prior matter, and “none of the [section 361.5, subdivision (b)] exceptions authorizes the denial of services based on a previous dependency where reunification was successful.” (Id. at p. 1188.)
But unlike this case, Rosa S. did not involve physical or sexual abuse and the court did not consider the denial of services under section 361.5, subdivision (b)(3). Rather, it addressed a decision not to provide services merely because the mother had previously had 18 months of services. No attempt was made to establish one of the exceptions to services in section 361.5, subdivision (b). Here, the exception under section 361.5, subdivision (b)(3) applies. In light of this conclusion, it is unnecessary to address mother’s challenge to the court’s denial of services under section 361.5, subdivision (b)(10).
DISPOSITION
The petition and request to stay the permanency hearing are denied.
WE CONCUR: MOORE, J., IKOLA, J.