Opinion
A117778
4-22-2008
In re DOMINICK L., Jr., a Person Coming Under the Juvenile Court Law. SOLANO COUNTY DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Plaintiff and Respondent, v. DOMINICK L., Defendant and Appellant.
NOT TO BE PUBLISHED
Dominick L. appeals from a dispositional order denying him reunification services as to his son (the minor). Appellant contends the juvenile court failed to realize that it had discretion to order reunification services under subdivisions (b)(10) and (c) of Welfare and Institutions Code section 361.5, and that the evidence warranted the offering of those services. We will affirm the order.
All statutory references herein are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL HISTORY
On December 22, 2006, respondent Solano County Department of Health and Social Services (Department) received a referral alleging that the minor was born the previous day and his mother tested positive for methamphetamines. The investigating social worker met with the mother and with appellant, and appellant signed a 30-day voluntary case plan. In this plan, appellant agreed to submit to an immediate drug test and to engage in substance abuse treatment at Healthy Partnerships by December 29, 2006. Appellant tested positive for methamphetamine and amphetamine. Although he scheduled an appointment for an evaluation at Healthy Partnerships on December 27, 2006, he failed to attend. Appellant admitted to the social worker that he had used methamphetamines before the drug test and again on December 31, 2006.
The minor was placed in protective custody on January 6, 2007. Two days later, the Department filed a petition under section 300, subdivision (b). The juvenile court ordered the minor detained after a hearing the next day.
The Department filed a first amended petition on January 30, 2007, asserting that the minor was within the juvenile courts jurisdiction pursuant to subdivisions (b) and (j) of section 300. Among the specific allegations were the following: the minor was placed in protective custody due to the ongoing unaddressed substance abuse problems of the mother and appellant; the minor was born prematurely and required specialized care that neither appellant nor the mother could provide; the mother had a significant history of substance abuse, which had led to the termination of her parental rights as to two of the minors half-siblings and placement of another half-sibling with the father following termination of reunification services to the mother; appellant also had a history of substance abuse, which had led to the termination of his parental rights as to the minors half-sibling; appellants history of substance abuse and criminal involvement rendered him incapable of providing care for the minors half-siblings; in the case of one of the minors half-siblings, appellant failed to avail himself of reunification services, failed to complete a court-ordered parenting program, and failed to engage in substance abuse treatment, resulting in the termination of reunification services; and appellant had failed to make a substantial lifestyle change since the termination of his parental rights as to the minors half-sibling. In addition, it was alleged that the minor was at substantial risk of physical injury or neglect due to appellants failure to comply with court-ordered reunification services and ongoing substance abuse. Appellant and the mother denied the allegations.
On April 17, 2007, the Department filed a Jurisdiction/Disposition Hearing Report. The report recommended that no reunification services be provided to appellant or to the mother because of their previous failures to reunify with the minors half-siblings (§ 361.5, subd. (b)(10)). (As to the mother, the Department also recommended no reunification services pursuant to section 361.5, subdivision (b)(11).) According to the report, appellant had not contacted the Department and had not visited with the minor in nearly four months. The Department recommended that a placement hearing be set pursuant to section 366.26.
A contested hearing as to both jurisdiction and disposition was held on May 10, 2007. As to the mother, the Department changed its recommendation and agreed to six months of reunification services due to her entry into a substance abuse treatment program. After the Department amended the petition as it pertained to the mother, the mother submitted on the issue of jurisdiction, and the issue of disposition as to the mother was continued to May 23, 2007.
The hearing proceeded as to appellant. The social worker testified that she asked appellant to enroll in a substance abuse program and to contact the Department to arrange visitation with the minor. Appellant visited with the minor at the hospital for about five minutes on December 24, 2006, and 30 minutes on December 26 and December 28, 2006. However, once the minor was placed in protective custody, appellant had neither seen the minor nor contacted the Department to arrange for visitation. Appellant had also failed to complete any training to assist him in meeting the needs of a special needs child.
Appellant testified that he had not completed any substance abuse program since the time reunification services were terminated for the minors half-sibling in 2003. He last participated in a substance abuse treatment program in 2000. He was scheduled for a substance abuse evaluation in January 2007, but he missed the appointment because he was working. When asked what had changed since reunification services were terminated as to the minors half-sibling, appellant testified: "[I] realiz[ed] that I need to step up and be a father instead of, you know, somebody that I was before." He further stated that, since losing custody of the minors half-sibling, "I had a good talk with my father and, you know, before me and my dad were never close, now we are starting to get where, you know, Ive talked to him about things and Im realizing that I need to start being a father ...."
The court sustained allegations b-5, b-6, b-7 and j-2 of the amended petition by clear and convincing evidence, noting that the appellant had not offered any evidence to refute the allegations. The court ordered that no reunification services be offered to appellant, due to his failure to reunify with the minors half-sibling (§ 361.5, subd. (b)(10)). In this regard, the court told appellant: "because of your past and the law pretty much mandates this, I am going to order that no reunification services be offered to you." This appeal followed.
DISCUSSION
The juvenile courts denial of reunification services for appellant was made pursuant to section 361.5, subdivision (b)(10). Under that statute, reunification services "need not be provided" to a parent when the court finds, by clear and convincing evidence, 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 parent or guardian is the same parent or guardian described in subdivision (a) 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."
Thus, there are two requirements for subdivision (b)(10) to apply: (1) the parent previously failed to reunify with a sibling (or half-sibling) of the minor; and (2) the parent did not subsequently make a reasonable effort to correct the problems that had led to the removal of the half-sibling. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) This provision reflects the legislative recognition that an attempt at reunification may be fruitless due to the risk of the parents recidivism, notwithstanding reunification services. (Ibid.)
Section 361.5, subdivision (b)(10) clearly applied to appellant. It was undisputed that the minors half-sibling was removed from appellant, appellant was offered reunification services and was ordered to engage in a substance abuse program and submit to drug testing, appellant failed to comply, and reunification services were terminated. Furthermore, appellant made no reasonable effort to address the substance abuse problem that had led to the half-siblings removal: by his own account, he had merely made a decision that he needed to be a good father. That is a thought, not an effort. In terms of what he actually did after losing custody of the half-sibling, appellant continued to use drugs, failed to participate in the Healthy Partnerships program, and missed a scheduled substance abuse evaluation.
Appellant does not dispute that the requirements of section 361.5, subdivision (b)(10) were met. Rather, he urges that the court was unaware of its discretion under section 361.5, subdivision (c), to order reunification services anyway. This failure to understand its discretion, appellant contends, mandates reversal. (See Perkos Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 245 ["When a trial court is mistaken about the scope of its discretion, even if the mistake is reasonable, an action taken in accord with that mistaken view is error."].) We disagree.
It is true that a parent subject to section 361.5, subdivision (b)(10) might still obtain reunification services if the parent proves that those services would be in the minors best interest. Section 361.5, subdivision (c) reads: "The court shall not order reunification for a parent or guardian described in paragraph . . . (10) . . . of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (Italics added. See Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1149-1150 [court has discretion to grant reunification services if it finds by clear and convincing evidence that it is in the best interest of the minor to do so].) It is the parents burden to demonstrate that reunification services would be in the minors best interests. (See In re Ethan N. (2004) 122 Cal.App.4th 55, 65.)
There is no indication that the juvenile court in this case misunderstood the law. Appellant refers us to the courts statement to appellant that "because of your past . . . the law pretty much mandates" the denial of reunification services, contending it shows that the court failed to understand its duty to consider whether or not reunification services to appellant would be in the minors best interest. But the observation that "the law pretty much mandates" denial of services seems to be a fair description of subdivision (b)(10) and (c) of section 361.5, which in fact mandates denial of services unless there is clear and convincing evidence that services would be in the childs best interest. Indeed, since it was appellants burden to show that reunification services would be in the minors best interest, and appellant offered no evidence to that effect, the law as applied to appellants case did mandate the denial of reunification services. (See § 361.5, subd. (c).) In the context of the record in this particular case, appellant fails to establish that the juvenile court misunderstood the scope of its discretion to order reunification services.
Neither appellants counsel, minors counsel, nor anyone else objected to the juvenile courts characterization of the law at the hearing. Furthermore, appellants attorney did not directly argue the best interests of the minor under section 361.5, subdivision (c) at the hearing. As to reunification, counsel merely stated: "Yes, my comment is that [appellant is] now in his mid-40s, his world view has changed and he wants to participate in family life. Notwithstanding his past situations, his decision or behaviors of not participating in the life of his children and I think he should be given the opportunity to do so whether he [fouls] up on it and whether he, like he said, he can gradually become a father to the child, I think he should be given that opportunity."
Appellant insists there was substantial evidence that ordering reunification services for him would have been in the minors best interest. The only evidence on which he relies, however, pertains to his completion of a substance abuse program in 2000. By no means does appellants completion of this program even remotely suggest that services in this case would be in the minors best interest. Notwithstanding the program in 2000, appellant continued to use drugs and failed to reunify with the minors half-sibling, leading to the termination of reunification services in 2003. After the half-sibling was removed from appellants custody, appellant still did nothing substantive to address his substance abuse. The fact that appellant failed to avail himself of reunification services after his 2000 substance abuse program does not demonstrate that it would be in the minors best interest to offer appellant reunification services again.
Appellant also argues that, because the mother will be engaged in reunification services, granting reunification services to appellant would not unduly delay the stability and permanence to which the minor is entitled, and reunification services for appellant would increase the chance that the minor could reunify with at least one biological parent. However, reunification services were not denied to appellant because they would cause a delay, but because of his past failure to take advantage of such services. Given this past failure, as well as his failure to subsequently remedy his underlying substance abuse problems, reunification services were properly denied under section 361.5.
Appellant has failed to establish error.
DISPOSITION
The order is affirmed.
We Concur.
JONES, P. J.
SIMONS, J.