Opinion
NOT TO BE PUBLISHED
Santa Clara County Super.Ct. No. JD19107
Duffy, J.
This petition for writ of mandate presents the substantive question whether there is substantial evidence to sustain the juvenile court’s order that, pursuant to the so-called “bypass” provision of Welfare and Institutions Code section 361.5, the reunification services of petitioner C. S. were to be ended and the matter set for a hearing under section 366.26 of that code. Substantial evidence supports the court’s determination, and therefore, after considering the claim (along with a procedural claim C. S. presents) on the merits pursuant to the requirements of rule 8.452(i)(1) of the California Rules of Court, we will deny the petition.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS
On July 22, 2008, three days after J. F. was born, the Santa Clara County Department of Family and Children’s Services (Department) filed a petition on his behalf pursuant to section 300, subdivision (b) (failure to protect) and (j) (abuse of siblings).
C. S. is married to the mother of J. F., but after J. F.’s birth she told the Department that she thought that another man, R. F., was J. F.’s father. Paternity testing later ruled out this possibility and established that C. S. was J. F.’s biological father. That discovery set the stage for proceedings, initiated by counsel for J. F., under section 361.5 regarding C. S.’s parental fitness and whether the juvenile court should order the bypassing of reunification services to which ordinarily he would be entitled.
In a report prepared for a contested six-month review hearing, the Department recommended that the juvenile court offer C. S. reunification services. In essence, the social worker reported that C. S. was “haunted by the loss of his [four other] children” and wished to do better with regard to J. F., with whom he “desperately wants to reunify.”
The social worker’s reference to C. S.’s loss referred to the fact that C. S. (and his wife as well) had lost their parental rights to their four other children following the Department’s allegations of domestic violence and drug abuse, as well as unkempt living quarters. The police had found evidence of methamphetamine use in the parents’ house. Each parent had physically attacked the other in the past, and C. S. had been convicted on domestic violence charges in 2005. Both parents had criminal records, and each was arrested on outstanding warrants when the police came to investigate conditions in the house.
The juvenile court rejected the Department’s recommendation and ruled instead that providing reunification services would not be in J. F.’s best interests and that they should be bypassed under section 361.5, subdivisions (b)(10) and (b)(11). It relied on evidence adduced during the hearing and reports generated before it that did not favor C. S. C. S. testified that except for taking a parenting class he had failed to participate adequately in case plan services regarding his four other children. He had been an alcoholic for almost 20 years. He had consumed methamphetamine in 2007. In the same year, he had struck his wife’s neck while drunk from consuming nine large cans of beer, and he was charged with misdemeanor domestic violence. A social worker testified that in December of 2007 she heard, over the telephone, C. S. verbally abusing his wife. The wife later told the social worker that she and C. S. had had a physical altercation as well on that occasion. C. S. was drunk and was threatening to kill himself and her. Following a year in which C. S. was homeless and living in parks, the authorities had jailed him for some or all of the following: felony car theft, driving under the influence, driving on a suspended license, evading police officers, violating probation, and a hit-and-run incident on a sidewalk. C. S. was currently in jail although, the record suggests, he had not yet been convicted of any offenses or had his probation revoked.
C. S. testified that he no longer is satisfied with living in dirty and unsafe conditions, but had become a “clean freak” who scrubs clean his and a neighbor jail inmate’s beds with a toothbrush and irritates other people by cleaning their homes unsolicited when visiting, washing their dishes, vacuuming their premises, and doing other chores uninvited. He was taking parenting and substance abuse courses in jail and had made an effort to address his substance abuse and domestic problems before his latest jailing by attending therapeutic classes.
Asked on cross-examination how C. S. could assure the court that he would not relapse on being discharged from jail, which was scheduled for the week following the hearing, C. S. testified, “I have no reason to drink alcohol anymore. I’m no longer mad.... I feel I grew up a lot... over the last four months.” He did not have, however, a residence to go to on his release.
Considering and evaluating the foregoing evidence, the juvenile court found that C. S. would attempt to better himself and resolve his problems only in a structured institutional setting and could not be relied on to do either when not under strict supervision. The court ruled as follows: “[T]he Court finds that the first prong on [section 361.5, subdivsions] (b)(10) and (b)(11) have been met. Clearly, there has been a termination of reunification services for half siblings and there has been a termination of parental rights for a half sibling or siblings. [¶] So then the second issue... is whether the parent has subsequently made a reasonable effort to treat the problems that led to the removal of the siblings[.] I’m going to find that [the minor’s counsel] has met her burden by clear and convincing evidence that [C. S.] has not. And the reason for that is it appears to me that most of the efforts [C. S.] has made have been while he’s been in custody and I think that’s laudable to do what you can while you’re in custody, but I don’t see that he made a lot of efforts while he was not in custody. And the reasonable thing to do is to take care of those issues before in effect you’re a captive audience, so I think we do have the (b)(10) and (b)(11) grounds satisfied.” The court then proceeded to find that offering reunification services to C. S. would not be in J. F.’s best interests.
In a letter brief addressing this writ petition, the Department states that it cannot fault the juvenile court’s decision and does not seek review of it, even though it had recommended to the court that C. S. should receive reunification services. C. S., however, challenges the decision, and we proceed to consider his arguments.
DISCUSSION
I. Ruling on Bypass Application Only After Initial Disposition Hearing
C. S.’s first claim is procedural. He contends that the juvenile court erred in ruling on J. F.’s bypass application after the court held a disposition hearing and not beforehand. He relies on language in Riverside County Dept. of Public Social Services v. Superior Court (1999) 71 Cal.App.4th 483, which, read in isolation, states that “subdivision (b)(10) of section 361.5 authorizes the court to deny services to any parent whose rights to another child have been terminated” “only” “before a disposition is made.” (Id. at p. 491.)
Counsel for J. F. replies that C. S. failed to challenge the juvenile court’s decision to proceed under the bypass provisions of section 361.5 following the initial disposition hearing and has forfeited his right to bring this petition.
Even if, as the minor’s counsel argues, forfeiture principles apply in these circumstances, we exercise our discretion to consider the claim on its merits. (See In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7.) It is particularly important that cases involving state action implicating the constitutional right to rear one’s own children (see Troxel v. Granville (2000) 530 U.S. 57, 65-66 (plur. opn. of O’Connor, J.); accord, id. at pp. 77 (opn. of Souter, J., conc. in judg.), 80 (opn. of Thomas, J., conc. in judg.); In re Henry V. (2004) 119 Cal.App.4th 522, 525) be resolved on their merits. (Of course, that right is not absolute (see Lehr v. Robertson (1983) 463 U.S. 248, 249-250; In re Marilyn H. (1993) 5 Cal.4th 295, 307); were it so, this case would not be before us.) The Rules of Court seem to recognize this principle as well in the circumstances of this case; rule 8.452(i)(1) specifies that “Absent exceptional circumstances, the reviewing court must decide the petition on the merits by written opinion.” (Italics added.)
Doing so, however, we do not agree with C. S.’s procedural argument. First, the decision in Riverside County Dept. of Public Social Services v. Superior Court, supra, 71 Cal.App.4th 483, is not on point. Riverside County stated, “In summary, we hold that subdivision (b)(10) of section 361.5 authorizes the court to deny services to any parent whose rights to another child have been terminated, or who has another child under a permanent plan after reunification efforts have failed. It does not matter whether the described actions were taken before or after the current dependency petition was filed; the only requirement is that they have occurred before a disposition is made in the instant case. The trial court therefore erred in believing that subdivision (b)(10) did not apply to Mother.” (Id. at p. 491.) In sum, Riverside County involved different children, not the same one, and the court there was concerned with speculation in juvenile court proceedings about “the possibility of ‘horse races,’ with the parent demanding a speedy hearing so that services would be ordered before (for example) a permanent plan of adoption was ordered for an older child, or [the agency] attempting to delay the dispositional hearing for a subject minor until a terminating order could be obtained for the older child.” (Id. at p. 489.)
Instead, we are confronted here with the unusual situation that the same child was, on September 9, 2008, the date of the initial disposition hearing, believed to be the offspring of R. F.; as C. S. observes, C. S. “was not present, noticed, or a party.” Only on March 24, 2009, did the juvenile court, after noting at a hearing that “we have sort of an interesting situation” regarding paternity, rule that R. F. was not J. F.’s father and had no further legal standing in the case, that C. S. was the legally presumed father of J. F., and that C. S. was entitled in principle to reunification services. C. S., as he also observes, then “asked for a disposition [hearing] and six months of services.” In turn, counsel for the minor said her office was “prepared to request a bypass for services” at the next hearing, following the provision of proper notice to all parties, and counsel for C. S. did not object. Thus, the bypass hearing, held on May 5, 2009, served also as the disposition hearing for C. S. that he had requested. Accordingly, the bypass decision occurred before the disposition decision, albeit in the same court session. C. S.’s procedural claim is, therefore, unavailing.
II. Whether Substantial Evidence Supports the Bypass Decision
We now turn to C. S’s substantive claim. He claims in substance that there is no substantial evidence to sustain the juvenile court’s ruling, under section 361.5, bypassing reunification services for him and setting the case for the ending of his parental rights under section 366.26.
Section 361.5, subdivision (a), generally mandates that reunification services are to be provided whenever a child is removed from the parent’s custody. However, subdivision (b) of section 361.5 sets forth a number of circumstances in which reunification services can be bypassed. “These bypass provisions represent the Legislature’s recognition that it may be fruitless to provide reunification services under certain circumstances. [Citation.]” (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597; accord, In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478; Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 163.)
The juvenile court ordered a bypass of reunification services pursuant to section 361.5, subdivision (b)(10) (failure to reunify with other children) and (b)(11) (parental rights previously ended regarding another child or children). Under the statute, “[r]eunification services need not be provided to a parent or guardian... 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, 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. [¶] (11) That the parental rights of a parent over any sibling or half sibling of the child had been permanently severed... 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 of that child from the parent.”
The parties do not dispute that the Department satisfied the first parts of the provisions—namely that C. S. had his reunification services and parental rights with the minor’s siblings ended. Reunification services regarding his four other children were ended on February 7, 2008, and his parental rights as to them were ended on July 29, 2008. Hence, we are concerned only with the second part of section 361.5, subdivisions (b)(10) and (b)(11), which, before reunification services may be bypassed, call identically for a juvenile court finding that C. S. had “not subsequently made a reasonable effort to treat the problems that led to removal of the sibling[s].” (§ 361.5, subds. (b)(10), (b)(11).)
We bear in mind that the “reasonable effort to treat” standard did not require C. S. to prove to the juvenile court that he had entirely eliminated his child welfare–related problems. (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.) Nevertheless, the standard of review is whether substantial evidence supports the court’s necessary determination that he failed to make a reasonable effort to treat those problems. (Amber K. v. Superior Court (2006) 146 Cal.App.4th 553, 560-561.)
The juvenile court’s order is supported by substantial evidence. The court was in a position to observe C. S.’s demeanor and evaluate his sincerity as he testified that he was a changed man. Substantial evidence supports the court’s observation that C. S. could conduct himself well in structured settings but was unable to do so outside of jail. The evidence of C. S.’s history of misconduct, loss of parental rights of four other children, and failed attempts at reform when living in his own home supports the court’s implicit conclusion that reunification efforts would be “fruitless.” (Francisco G. v. Superior Court, supra, 91 Cal.App.4th at p. 597.)
CONCLUSION
The petition is denied. The stay of further proceedings in the juvenile court issued by this court on July 31, 2009, is hereby dissolved.
WE CONCUR: Rushing, P. J., Mihara, J.