Opinion
F042289.
7-11-2003
In re CANDELARIO M., a Person Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. CHRISTINA M., Defendant and Appellant; CANDELARIO M., Appellant.
Beth A. Melvin, under appointment by the Court of Appeal, for Appellant. Deanna F. Lamb, under appointment by the Court of Appeal, for Defendant and Appellant. B. C. Barmann, Sr., County Counsel, and Tom Clow, Deputy County Counsel, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Buckley, J., and Cornell, J.
After removing appellant, Candelario M., and his three half-siblings from the custody of their mother, Christina M., the court denied the mother reunification services under Welfare and Institutions Code section 361.5, subdivision (e)(1). Appellant contends the finding was not supported by substantial evidence. We will affirm the judgment.
Unless indicated otherwise, subsequent statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A probation search of the residence of Christina M. on May 2, 2002 yielded amphetamines and drug paraphernalia. Also in the home were Christinas live-in boyfriend, who is the father of her youngest child, three unrelated adult males, and an adult female, all of whom were under the influence of methamphetamine. One of the adult males was required to register as a sex offender (Pen. Code, § 290) for annoying/molesting a child; another had previously been convicted of unlawful sexual intercourse with a minor and was a registered narcotics offender; the third had been convicted for willful cruelty to a child. The home was filthy and infested with roaches.
Christinas children, 12-year-old Candelario M., 8-year-old Paul J., and 2-year-old Moses F., were taken into protective custody, along with their 16-year-old half-sibling. Paul J. and Candelario reported to the social worker that Christina sold drugs and that her live-in boyfriend used them. Candelario also reported that sometimes when he woke up, Christinas boyfriend or the sex offender friend would be in bed with him, which he did not like. The 16-year-old half-sibling said that he had been arrested for smoking marijuana. Christina denied selling drugs or knowing about the drugs that were found in the sock she was wearing. She admitted, however, a history of using heroin and cocaine, but said that she had been clean for 14 years. Christina also said that she knew that several of the people staying in her home had substance abuse problems, but the problems were "a long time ago." She said that none of the adult males should have been sleeping with her son, since the boys had put a sign to that effect on their bedroom door. All of the adults were arrested.
Respondent filed petitions alleging that the children came within the jurisdiction of the juvenile court under section 300, subdivision (b) (drug use and unsanitary living conditions), subdivision (d) (presence of a registered sex offender in the home), and subdivision (g) (parent incarcerated and unable to arrange appropriate care). The petition was sustained, and the children were ordered detained, on May 7, 2002. The court ordered reunification services for Christina "as soon as possible." On May 16, Christina enrolled in counseling for child neglect, substance abuse, and failure to protect.
On July 18, 2002, Christina was found guilty of possessing drugs for sale, maintaining a place to sell/use drugs, and willful cruelty to a child. Sentencing was scheduled for August 15, 2002. However, on August 8, 2002, Christina was again arrested for maintaining a place to sell or use drugs. An adult male in the residence admitted that he had flushed a drug pipe down the toilet when he saw police. A 15-year-old boy was found with marijuana in the backyard. Police also found drug paraphernalia, including a syringe, in a locked cabinet to which only Christina had the key. Christina denied knowing that either of the other two occupants had drugs or drug paraphernalia.
At the contested jurisdictional hearing, the court found true some of the allegations of each count of the petition and dismissed the remainder without prejudice. The court dismissed the petition as to the 16-year-old half-sibling, after removing custody from Christina and placing the boy with his father. The court set the matter for a further contested jurisdictional/disposition hearing.
The social study prepared for the disposition hearing noted that Christina was incarcerated, having been sentenced to two years in prison. Candelario and Paul were in foster care, and Moses was living with his paternal grandparents. The bond between Christina and the children was described as "very close." Christina had attended all scheduled visits with her sons, had submitted to drug testing, and had enrolled in substance abuse counseling and parent training. However, the report further described Christina as "minimally cooperative," noting that her re-arrest demonstrated that "she has failed to show any effort in alleviating the circumstances, which caused the removal of the children." The report recommended against providing reunification services to Christina because she would be unable to complete a reunification plan given the length of her sentence. The report noted that Christina had a 20-year history with the dependency system, during which she had repeatedly made "wrong decisions regarding her children." A supplemental report indicated that Christina had an anticipated release date of December 26, 2003, although if she participated in services in prison, "her release date may decrease by a couple of months." However, Christina would be held in the prisons reception area for 60 to 90 days before being transferred to the general population, where she could attend counseling or classes.
At the disposition hearing on November 21, 2002, Christinas counsel argued that respondent had not shown that reunification services would be detrimental to the children given the close bond with the children, the possibility that Christina might be released from prison earlier than anticipated, the desire expressed by the children to reunite, and Christinas efforts—if not progress—as to services. Counsel for the children also recommended that Christina be provided services.
In preparing to rule, the court noted that Christina had to reunify with the children by November 2, 2003. Commenting on the issue of whether reunification would be detrimental to the children, the court stated:
"So really what we are looking at, the inevitable for the mother. She simply cannot reunify with these children before the time expires. Its not a time that I set or you set or the social worker set. Its the time the Legislature [has] set."
"My fear is — I understand the length of the sentence is not the sole factor, but its certainly a factor that has to be weighed. It would certainly make it a lot easier if it was five months compared to 18 months... We know even if she gets out of prison in November of 03 that we are going to require her to be out of custody in a clean environment before we return a child to her given her substantial length of substance abuse. She would not get out of custody and get these kids the next day. It could happen. Im not making up my mind on that, but as a practical matter, we know she is going to have to show some clean tests and be clean. [P] The problem is these kids could end up having false hope that they are going to somehow reunify with their mother when, as a practical matter, its not going to happen. I think thats detrimental to these kids for them to think, well, we are reunifying, mom is doing this, we are going to get out and move in with her the day she gets out of custody...."
Finding that Christina "has made no compliance with the case plan and no progress toward alleviating" the causes for the childrens removal from the home, the court adjudged the minors dependents and denied Christina reunification services under section 361.5, subdivision (e).
Candelario was eventually placed with his father, who had not known of Candelarios existence until contacted by the social worker in this matter.
DISCUSSION
Appellant contends that insufficient evidence supported the finding that offering reunification services to Christina would be detrimental to him. We do not agree.
Upon removing a dependent child from parental custody, the court generally is required to order welfare services for the purpose of assisting the parent to ameliorate the problems that led to removal and facilitate the childs safe return to parental custody. ( § 361.5.) However, despite the fundamental policy of seeking to reunify dependent children with their parents, the statutory scheme contains certain narrowly specified exceptions in recognition that in some circumstances, "attempts to facilitate reunification do not serve and protect the childs interests," and would be an exercise in futility. (In re Baby Boy H . (1998) 63 Cal.App.4th 470, 474, 478.) Where the parent is unlikely to benefit from reunification efforts, these defined exemptions from mandatory services serve the purpose of the dependency law: "To ensure the well-being of children whose parents are unable or incapable of caring for them by affording them another stable and permanent home within a definite time period." (In re Joshua M. (1998) 66 Cal.App.4th 458, 474.)
"Although the goal of the juvenile law is to reunite children with their parents whenever possible, this reunification must be accomplished within 18 months from the time the child is originally taken from his or her parents custody. [Citation.] This strict time frame, in turn, is a recognition that a childs needs for a permanent and stable home cannot be postponed for an extended period without significant detriment. [Citations.]." (In re Joshua M., supra,. 66 Cal.App.4th at p. 474.)
In addition, by defining specific situations in which reunification services may be denied because success is so unlikely, the Legislature has acted to conserve scarce resources for those cases in which services may be effective. (In re Joshua M., supra, 66 Cal.App.4th at p. 471.)
Incarceration of a parent, in itself, does not preclude reunification services ( § 361.5, subd. (e)(1)), but the Legislature has specifically authorized denial of services in instances where the parent is incarcerated and the juvenile court finds by clear and convincing evidence that provision of services would be detrimental to the child. (Ibid.) In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered and, for minors 10 years of age or older, the childs attitude toward the implementation of family reunification services, as well as "any other appropriate factors." (Ibid.) "Section 361.5 subdivision (e)(1) does not require that each listed factor exist in any particular case, nor does it specify how much weight is to be given to a factor bearing on detriment, listed or not." (Edgar O. v. Superior Court (2000) 84 Cal.App.4th 13, 18.)
On appellate review of a juvenile courts factual determinations and exercise of discretion in a dependency matter, the reviewing court must uphold the judgment if supported by substantial evidence. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) In this case, the record reflected such substantial evidence.
Appellant acknowledges that Christinas expected release date would preclude reunification within the statutory 18-month period, and that a single factor can support a finding of detriment. (In re Dylan T. (1998) 65 Cal.App.4th 765, 774.) However, appellant argues that it was unreasonable here for the court below to remain "fixated" on the release date here, given his age, his bond with his mother, his desire to reunify with her, and the inevitable separation of the siblings in the absence of reunification. Appellant in effect asks this appellate court to reweigh the evidence, an undertaking forbidden to us.
Appellant also contends that services were warranted because participation in services in prison might reduce Christinas sentence by a few months, such that she might still be able to reunify within the statutory period, or, alternatively, because Christina might somehow be able to effect reunification at some point in the future. The arguments are, of course, nothing more than speculation, and even that speculation is seriously undermined by Christinas failure to benefit from services as demonstrated by her prompt return to the familiar lifestyle that exposed her children to drugs, criminals, and sex offenders.
"If the child may not safely be returned to the parents within a maximum of 18 months from removal, the court must terminate reunification efforts ...." (In re Zacharia D. (1993) 6 Cal.4th 435, 447, 862 P.2d 751.) As noted above, "a childs needs for a permanent and stable home cannot be postponed for an extended period without significant detriment. [Citations.]." (In re Joshua M., supra. 66 Cal.App.4th at p. 474.) The court here sounded the same theme: "[These children] need permanency. They have not had permanency." Substantial evidence thus supported the denial of services.
Given this finding, we need not reach appellants argument that no evidence supported the courts finding of detriment in fostering "false hope" in the minors regarding reunification.
To the extent that Christina M. joins in the arguments in appellants opening brief pursuant to rule 13, California Rules of Court, these findings apply to her as well.
DISPOSITION
The judgment is affirmed.