Opinion
A152482
06-15-2018
In re JOEY H., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. JOSE H., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1700445)
Jose H. appeals a dispositional order bypassing reunification services for him with respect to his now one-year-old son Joey H. He concedes that the conditions for bypass under Welfare and Institutions Code section 361.5, subdivision (b)(13) were met, but argues that the court abused its discretion under section 361.5, subdivision (c) in rejecting his argument that reunification services are nonetheless in his son's best interest. There was no error and we shall therefore affirm the dispositional order.
All statutory references are to the Welfare and Institutions Code.
Factual and Procedural History
In April 2017, Contra Costa County Children and Family Services Bureau (the bureau) filed a petition alleging newborn Joey comes within section 300, subdivision (b)(1) based on his mother's serious and chronic substance abuse. The petition alleges that Joey was born with a positive toxicology for methamphetamine and was admitted to the neonatal intensive care unit due to severe withdrawal symptoms. An amended petition was filed on May 16 adding allegations that Jose also has a serious and chronic substance abuse problem, is required to register as a narcotics offender and that the parents have a significant history of domestic violence. Following a jurisdictional hearing on May 31, the court found the allegations of the amended petition true.
A contested dispositional hearing was held on August 24. In a report prepared for the dispositional hearing, the bureau recommended reunification services be provided to the mother but that services be bypassed for Jose pursuant to section 361.5. The report detailed Jose's six criminal convictions, four of which involved drugs or alcohol, and his failed attempts at completing various drug treatment programs. The bureau also submitted a memorandum detailing the parents' contacts with law enforcement since the dependency proceedings began, including two incidents that resulted in Jose's arrest. On May 28, 2017, police received a report that mother had been forced into a vehicle against her will. When the policed stopped Jose's vehicle they found a large knife, approximately five inches in length, attached to his belt. Mother explained this occurred after they had been arguing about his Facebook friends and she exited the car. Jose was arrested for carrying a concealed dagger. On July 22, 2017, the parents were arrested for receiving stolen property, petty theft, possessing a controlled substance and for a probation violation after a woman reported that her wallet had been stolen. According to the bureau's report, the parents worked together to take the wallet and Jose threatened the victim with a knife when she attempted to recover it. Following their arrest, police found heroin in Jose's wallet and drug paraphernalia in his car. The social worker reported that both parents admitted that they were addicted to heroin and Jose admitted that he stole the merchandise to support his addiction.
At the hearing, father testified that he had struggled with addition since he was 13 years old. He began his first in-patient drug treatment program when he was 15, but did not complete the program. Since then he has participated in several other drug treatment programs but completed only one program and has relapsed numerous times. Jose testified that he had made arrangements to enter into the Victory Outreach drug treatment program when released from custody.
The court followed the recommendation of the bureau and bypassed Jose for services. The court cited Jose's "extraordinarily extensive" history of substance abuse and failed attempts to overcome the abuse. The court also found that with Jose's background, it would be "highly detrimental" to offer him reunification services. Jose timely filed a notice of appeal.
Discussion
"There is a statutory presumption in favor of family preservation in juvenile dependency proceedings [(§ 361.5, subd. (a))], and family reunification services are an integral part of that process." (In re E.G. (2016) 247 Cal.App.4th 1417, 1426.) To that end, section 361.5, subdivision (a) "generally provides that in dependency cases parents shall be entitled to reunification services 'whenever a child is removed from a parent's . . . custody,' '[e]xcept as provided in subdivision (b).' Section 361.5, subdivision (b) provides a detailed list of circumstances in which such services need not be provided, commonly known as 'bypass' provisions. The bypass provisions constitute a legislative acknowledgement that ' "it may be fruitless to provide reunification services under certain circumstances." ' " (D.T. v. Superior Court (2015) 241 Cal.App.4th 1017, 1033.) Once it has been determined one of the situations enumerated in section 361.5, subdivision (b) applies, " ' " the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources." ' " (In re William B. (2008) 163 Cal.App.4th 1220, 1227.)
Here, the court found that Jose comes within the meaning of section 361.5, subdivision (b)(13) in that he has a "history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court's attention." Jose does not challenge the court's application of section 361.5, subdivision (b)(13) to him, but contends the court abused its discretion in refusing to provide him family reunification services pursuant section 361.5, subdivision (c).
Under section 361.5, subdivision (c)(2), the court "shall not order reunification for a parent or guardian described in paragraph . . . (13) . . . of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." To determine whether reunification is in the child's best interest, the court "should consider 'a parent's current efforts and fitness as well as the parent's history'; '[t]he gravity of the problem that led to the dependency'; the strength of the bonds between the child and the parent and between the child and the caretaker; and 'the child's need for stability and continuity.' " (In re William B., supra, 163 Cal.App.4th at p. 1228.) On appeal, we review the court's determination for an abuse of discretion. (In re G.L. (2014) 222 Cal.App.4th 1153, 1164-1165.)
Jose contends the court abused its discretion in concluding that it is not in Joey's best interest to order reunification services for him. He argues, "In light of mother receiving family reunification services, [his] continued visitation with Joey, the parent's continued relationship and [his] willingness to enter treatment and do whatever it took to reunify with Joey, it could only serve Joey's best interest to afford family reunification services to [him]." We disagree.
First, contrary to Jose's argument, In re G.L., supra, 222 Cal.App.4th 1153, does not support the "the proposition that the juvenile [court] must consider . . . whether services were ordered for the other parent, when making its finding under section 361.5, subdivision (c)." In that case, the trial court listed three factors in support of its determination that it would be in the child's best interest to offer services to the mother despite the applicability of the section (b)(13) bypass provision, including that mother was actively participating in services, had a positive relationship with her child, and services were being offered to father. With respect to the last factor, the trial court explained, "The father has only met his son, I believe, one time in March. So he will be getting services to assist him in regaining custody, in which case the mother will be in a position of coparenting the child. So I think to assist the father and child with that reunification effort, it would be important to also shore up the mother's issues to maximize reunification of [the minor] with at least one of his parents." (Ibid.) In affirming the trial court's exercise of discretion, the appellate court did not reference the third factor, focusing instead on the considerable evidence in support of the first two factors. (Id. at pp. 1165-1166.)
Nor did Jose argue in the trial court that his ongoing relationship with mother supported the provision of reunification services to him as well. In any event, the court reasonably ordered services for mother and not Jose. The court expressed significant concerns regarding mother's ability to reunify with her child if she remained in a relationship with Jose. The court warned mother: "[T]his relationship is your undoing as a parent and as a person. Your life is utter chaos. And look where you find yourself right now. Any every time you find yourself there you need to ask yourself, how did you get there? Who were you with when you got there? If you look at your relationship with the father and you're honest with yourself, this is utter dysfunction. And he has done nothing to address his substance abuse issue. Legally, I can't bypass on you because there's no basis. But you need to understand it's six months of reunification. And that means that you have to demonstrate that you addressed the issues that brought you and your child, who you exposed repeatedly in utero to substances, you address those issues." The court recognized that mother was still in county jail and advised her to participate in all available drug treatment and domestic violence treatment programs while in custody. Although Jose claims that he and mother are "still be together in some capacity," nothing in the record suggests that encouraging or supporting that relationship is in Joey's best interest.
The court's order continuing visitation between Jose and Joey does not establish an abuse of discretion in denying Jose reunification services. After the court has denied reunification services under subdivision (b)(13) of section 361.5. Subdivision (f) expressly authorizes the court "to permit the parent to visit the child unless it finds that visitation would be detrimental to the child." Here the court continued the previously ordered visitation, one hour a week. Visitation in these circumstances serves very different purposes than reunification services. Ongoing visitation protects a parents' substantive due process rights by holding open an escape mechanism to avoid termination of parental rights. A parent who can show that circumstances have changed since services were bypassed and that it has become in the child's best interest to provide reunification services can file a section 388 petition seeking relief before the section 366.26 hearing takes place. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Ongoing visitation is also essential to establish the beneficial parental relationship exception to termination of parental rights. (§ 366.26, subd. (c)(1)(A).) If visitation is denied when services are bypassed, "it is a forgone conclusion that [the parent] is not going to be able to establish the exception or have any meaningful chance to avoid the termination of parental rights." (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504-1505.) The order does not suggest that the court believed reunification is appropriate or likely. To the contrary, the court found that visitation would not be in the child's best interest until Jose was released from custody and rejected a request for increased visitation based on his prior failure to take advantage of the visitation that was offered.
Finally, on the record before the court, Jose's claim that he was "willing to enter treatment and do whatever it took to reunify with Joey" does not establish an abuse of discretion. Until his most recent arrest, Jose had consistently denied using and being addicted to drugs. His testimony at the disposition hearing suggests that his commitment to treating his addiction is still tentative. He testified that, while he has enrolled in a one-year treatment program, he believed a three or six month program would be "better" for him."
Accordingly, there was no abuse of discretion in the trial court's dispositional order.
Disposition
The dispositional order is affirmed.
/s/_________
Pollak, Acting P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.