Opinion
E034097.
10-10-2003
GLENN D., Petitioner, v. THE SUPERIOR COURT OF THE COUNTY OF SAN BERNARDINO, Respondent; DEPARTMENT OF CHILDRENS SERVICES, Real Party in Interest.
Friedman, Gebbie & Gardner and Beth L. Steigerwalt for Petitioner. No appearance for Respondent. Ronald D. Reitz, County Counsel, and Ramona E. Verduzco, Deputy County Counsel, for Real Party in Interest.
1. Introduction
In his petition for extraordinary writ, father Glenn D. claims the juvenile court erred in setting the Welfare and Institutions Code section 366.26 hearing. Father specifically challenges the courts denial of reunification services under section 361.5, subdivision (b)(10) and (11). Because substantial evidence supported the courts findings under section 361.5, we reject fathers claim and we deny his petition.
California Rules of Court, rule 39.1B.
All further statutory references will be to the Welfare and Institutions Code unless otherwise stated.
2. Factual and Procedural History
In early 2003, the day after Joshua S. was born, the staff at the hospital discovered that he had a blood infection and needed an antibiotic injection. Father, however, refused to give consent for the procedure. In addition to denying Joshua the necessary medical care, father also frightened the hospital staff with his hostile and bizarre behavior. For instance, father insisted on spending the night at the hospital and put on a hospital gown without any clothes underneath.
The hospital staff reported the incident and a social worker for the San Bernardino County Department of Childrens Services (DCS) arrived to conduct further investigation. The childs mother, who appeared to be afraid of father, was evasive about her family history and fathers whereabouts. Father had left the hospital and could not be found.
The social worker later discovered that, in a separate dependency proceeding, Adrianna D., fathers daughter and Joshuas half-sister, was removed from fathers custody. As discussed in the next section, although the court provided father with reunification services, he failed to reunify with Adrianna and the court ultimately terminated his parental rights.
After her initial investigation, the social worker filed a dependency petition under section 300, subdivisions (b), (e), and (j). As to father, DCS alleged that father refused to consent to necessary medical treatment and failed to provide Joshua with food. DCS alleged that both parents suffered from mental illness and were unable to provide the child with regular care. DCS also alleged that father neglected his daughter Adrianna by failing to provide necessary food and care, resulting in hypothermia and malnutrition, and that Joshua was at risk of suffering similar abuse.
Section 300, subdivisions (b) and (e).
Section 300, subdivision (b).
Section 300, subdivision (j).
DCS removed Joshua from parental custody and placed him in foster care. Joshuas half-brother, Isaac D., was also removed and placed with his mother, Jean B.
By the time of the first jurisdictional hearing, the social worker still was unable to locate father. The social worker repeatedly called the number provided by mother and left messages for father. Mother and fathers answering machine played a message stating that the caller had "reached freedom for the family, a subdivision of freedom for America." The message continued by stating that, "[l]arge numbers of children are being seized and kidnapped, using false information against the parents throughout the state of California . . . ."
On February 24, 2003, mother and her friend appeared at the social workers office. The friend stated, and mother confirmed, that father had an assault rifle and had threatened to kill social workers. Mother also informed the social worker of instances of domestic violence. The friend explained that, during one occasion when he had attempted to help mother leave father, father retrieved his assault rifle and pointed the gun at the friends head. Based on these allegations, the police arrested father on February 27, 2003. The police found evidence to suggest that father had planned to attack the DCS office and, specifically, the social worker assigned to his case.
DCS filed a request for a temporary restraining order against father. The court granted the request.
On March 26, 2003, DCS filed a first amended petition under section 300, subdivisions (b), (e), and (j). DCS added additional allegations against father, including a history of domestic violence, drug abuse, and paranoid behavior leading to paramilitary activity.
At the jurisdictional hearing on the first amended petition, the court found the following allegations true: father failed to consent to provide child with necessary medical treatment; father has a history of domestic violence; and father has a history with DCS based on severe neglect. The court found the remaining allegations not true.
At the dispositional hearing on July 17, 2003, the court found that father failed to make reasonable efforts to treat the problems leading to Adriannas removal. The court also found that DCS complied with the courts initial detention order to provide father with services to return Joshua to parental custody. Return to parental custody, however, would create a substantial danger to Joshuas physical safety and emotional well-being. The court therefore denied father reunification services under section 361.5, subdivision (b)(10) and (11). The court then scheduled a hearing under section 366.26.
3. Discussion
Father claims the juvenile court erred in denying services under section 361.5, subdivision (b)(10) and (11). Father argues that the court erred in finding that he had failed to make reasonable efforts to eliminate the problem leading to Adriannas dependency. Father also argues that insufficient evidence supported the courts finding that DCS provided reasonable services before the court denied reunification services at the dispositional hearing.
Under section 361.5, subdivision (b), the court need not provide a parent with reunification services for various reasons, including the following: the parent has failed to reunify with a sibling or half-sibling and has failed to make a reasonable effort to treat the problems leading to that sibling or half-siblings initial removal, and the parent has had her parental rights over a sibling or half-sibling terminated and has failed to make a reasonable effort to treat the problems leading to the removal. A juvenile courts findings under this provision are reviewed under the substantial evidence standard.
Section 361.5, subdivision (b)(10).
Section 361.5, subdivision (b)(11).
In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.
The record in this case discloses substantial evidence to support the courts finding under section 361.5, subdivision (b)(10) and (11). Fathers minimal participation in the available services did not amount to reasonable efforts and was ineffective in treating the problems leading to Adriannas removal.
On May 11, 2001, DCS removed Adrianna from parental custody after hospital staff discovered that she was suffering from hypothermia and malnutrition. At three and a half months old, Adrianna weighed only seven pounds. During the reunification period, DCS provided reasonable reunification services. While the record indicates that father completed one parenting class, father failed to satisfy any of the other requirements of his reunification plan. A parents failure to make progress in eliminating the problems leading to the dependency, despite some efforts to participate in the court-ordered services, indicates that the parent is unlikely to benefit from additional services. Also, the social worker noted that, because father failed to maintain regular visitation, there was no parent-child bond between father and Adrianna. The court therefore terminated parental rights on June 18, 2002.
See In re Diamond H. (2000) 82 Cal.App.4th 1127, 1138, disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, footnote 6.
In the instant case, DCS removed Joshua because his parents failed to provide him with food and necessary medical care. In both cases, based on the common thread of severe neglect, ". . . the risk of recidivism is a very real concern." There is no indication in the record that fathers prior failures with his daughter will not be repeated with his son. "The law does not require the performance of idle acts. [Citation.] And where substantial but unsuccessful efforts have just been made to address a parents thoroughly entrenched drug problem in a juvenile dependency case involving one child, and the parent has shown no desire to change, duplicating those efforts in a second case involving another child — but the same parent — would be nothing but an idle act."
In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478; see also In re Jasmine C., supra, 70 Cal.App.4th 71, 76.
Letitia v. Superior Court (2000) 81 Cal.App.4th 1009, 1016 (footnote omitted).
In fact, in Joshuas case, the hospital staff immediately noticed fathers hostile and uncooperative behavior. Father seemed adamant against providing Joshua with necessary treatment, including the antibiotic injection, hearing test, and the blood test. Father simply wanted to leave the hospital with his child. The record indicates that father failed to recognize the needs of his children and failed to take steps to meet those needs.
Therefore, the evidence supported the trial courts finding that father had failed to make reasonable efforts to treat the problems leading to Adriannas removal. The court properly denied reunification services under section 361.5, subdivision (b)(10) and (11).
Furthermore, the courts decision to terminate of reunification services was unaffected by fathers subsequent efforts or lack thereof. While the record indicates that the social worker made reasonable efforts to provide father with additional services, as ordered by the court at the detention hearing in this case, fathers failure to maintain contact with DCS prevented him from taking advantage of the services and demonstrating any progress.
Before his incarceration on February 27, 2003, father made no effort to inform the social worker of his whereabouts. The social worker attempted to locate father. The social worker repeatedly called the number provided by mother and left messages. Father failed to return the social workers calls.
After his arrest, father resided at the West Valley Detention Center. That facility did not offer any services. After fathers transfer to Glen Allen Rehabilitation Center, the social worker sent a letter to fathers counselor inquiring about the available services. The social worker also sent father a letter informing him of her efforts and recommending that he participate in the available services, including parenting classes and counseling.
The record indicates that father had no one to blame but himself for failing to take advantage of the court-ordered services. After leaving Joshua at the hospital, father failed to contact the social worker or inform her of his whereabouts. About a month later, fathers violent encounter with mother and her friend resulted in fathers incarceration. When services were finally available to father, the social worker made efforts to ensure fathers participation.
We conclude that substantial evidence supported the courts finding that DCS made reasonable efforts to provide father with pre-dispositional services.
4. Disposition
We deny fathers petition.
We concur: McKinster Acting P.J. and Richli, J.