Opinion
F042705.
11-24-2003
In re MELISSA G., A Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. JOSEPH G., Defendant and Appellant.
Michael J. Kluk, under appointment by the Court of Appeal, for Defendant and Appellant. Michael H. Krausnick, County Counsel, and Carrie Stephens, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT
Joseph G. appeals from orders denying him reunification services and face-to-face visitation with his 10-year-old daughter Melissa. He contends there was no showing that the provision of services and face-to-face visitation would be detrimental to Melissa to warrant the denial. On review, we disagree and will affirm.
PROCEDURAL AND FACTUAL HISTORY
Melissas mother and appellant were married as of 1992 when appellant was convicted on kidnapping, robbery, rape and oral copulation charges and sentenced to a 26-year state prison term. At the time, appellant had four prior felony convictions, two for assault with a deadly weapon, one for attempted assault with a deadly weapon and one for prison escape.
Soon after appellants prison commitment, Melissa was born. The mother brought Melissa on an undisclosed number of prison visits to see appellant, none of which Melissa recalls. By the mid 1990s, the parents were divorced and the visits had stopped. According to the mother, a court in Del Norte County awarded her sole custody of Melissa and denied appellant visitation. The mother believed the visitation restriction was due to the nature of appellants convictions.
In October 2002, respondent Stanislaus County Community Services Agency (the agency) initiated these dependency proceedings based on allegations that the mother physically abused Melissa as well as neglected her. Appellant received notice of the proceedings and in turn wrote from prison to the court. In relevant part, appellant admitted he had not seen Melissa since September of 1992, but he did send cards and letters.
Throughout the remainder of 2002, the court exercised its dependency jurisdiction over Melissa under multiple subdivisions of section 300 but left Melissa in her mothers custody. Then, in early 2003, respondent detained Melissa based on the mothers failure to comply with the service plan.
In its initial disposition report prepared in December 2002, the agency recommended that the court deny appellant reunification services under section 361.5, subdivisions (b)(12) and (e)(1). The agency based its recommendation on appellants incarcerated status, his record, and the fact that Melissa had no memory of ever seeing him. In a January 2003 addendum, the agency reported appellant was scheduled for prison release in July 2004. Despite the no-services recommendation, the agencys case plan, attached to both the original report and January addendum, included once-a-month supervised visitation between appellant and Melissa.
In relevant part to this appeal, section 361.5, subdivision (e)(1) authorizes a court to deny services to an incarcerated parent if the court determines, by clear and convincing evidence, those services would be detrimental to the child. 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 crime, the degree of detriment to the child if services are not offered and, for children 10 years of age or older, the childs attitude toward the implementation of family reunification services, and any other appropriate factor.
The court eventually conducted the dispositional hearing in late February 2003. In addition to its reports, the agency submitted the matter on the testimony of one of its social workers. The social worker reported that after the most recent court hearing which was in late January 2003, a fellow coworker supervised a jail visit between appellant and Melissa. Melissa had vacillated about whether she wanted to visit appellant. Her attorney however persuaded the child to do so. The visit was conducted by telephone as there was a glass partition between appellant and Melissa. Melissa kept laying her head down, did not make direct eye contact with appellant, and did not talk into the phone. At the end of the visit, the child got up, said, "I know what you did," and left. It was the social workers understanding that Melissas comment was in reference to appellants convictions. There were no concerns expressed about appellants behavior during this episode. The minors counsel would later advise the court that she attempted a few times to call Melissa after the visit but was unable to speak to the child about her wishes.
Appellant took the stand on his own behalf. According to him, his jail visit with Melissa "went all right." Contrary to his letter to the court, he added that he had weekly visits with Melissa until 1994 when the mother was incarcerated. After that, he had some phone contact with Melissa. For some time in 1999 and 2000, Melissa stayed out-of-state with his mother who also maintained phone contact with appellant.
Appellant further testified that he wanted to be a part of Melissas life. He also pointed to vocational trade courses he completed during his incarceration. In addition, he claimed his prison release could be advanced if he testified in a federal prosecution. He further stated his willingness to participate in "parenting classes or other counseling" available where he was incarcerated.
While appellant was on the witness stand, the court asked whether one of his convictions had been for violating Penal Code section 288. Appellant replied no, that he had been convicted of violating Penal Code section 288a, subdivision (c), which pertains to an act of oral copulation against a minor under age 14 or an act accomplished against the victims will by certain defined means. The court then inquired whether his victim on the oral copulation conviction had been a minor or an adult. Appellant testified his victim was an adult. In response to further questions, appellant admitted he had not received any sexual offender counseling during his incarceration.
Following argument, the court adjudged Melissa a dependent child and removed her from parental custody. On the issue of services, the court expressly found by clear and convincing evidence, pursuant to section 361.5, subdivision (e)(1), that services for appellant would be detrimental to Melissa. The court also suspended visitation during incarceration but permitted communication by way of telephone or letter writing.
DISCUSSION
Denial of Services Under Section 361.5, Subdivision (e)(1)
As alluded to above, whenever a dependent child is removed from parental custody, the court must decide whether to order reunification services. (§ 361.5, subd. (a).) If a parent, otherwise entitled to services, is incarcerated, the court should order reasonable services:
"unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. 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 crime . . . the degree of detriment to the child if services are not offered and, for children 10 years of age or older, the childs attitude toward the implementation of family reunification services, and any other appropriate factors. Reunification services are subject to the applicable time limitations imposed in subdivision (a)." (§ 361.5, subd. (e)(1).)
In Melissas case, that time limit would be 12 months from the time she entered foster care (§ 361.5, subd. (a)) or January 2004.
Appellant challenges the courts reasoning in denying him reunification services under this subdivision of section 361.5. First, appellant claims the court misinterpreted the statute by looking only to the lack of bonding between appellant and Melissa. Second, appellant criticizes the court for ignoring evidence, thereby making it impossible to find by clear and convincing evidence that reunification services for his benefit would be detrimental to Melissa. As discussed below, we find no merit in either of appellants contentions.
To the extent that appellant attacks the courts reasoning, we remind appellant the juvenile courts reasoning is not a matter for this courts review. (Davey v. Southern Pac. Co. (1897) 116 Cal. 325, 329.) It is judicial action and not judicial reasoning which is the proper subject of appellate review. (El Centro Grain Co. v.Bank of Italy Nat. Trust & Savings Assn. (1932) 123 Cal.App. 564, 567.)
Next, appellants claim that the juvenile court misinterpreted section 361.5, subdivision (e)(1) is based on an incomplete recital of the record. While the court made mention of the fact appellant never cared for Melissa and there was a lack of bonding, this was not all the court had to say on the subject. The court also referenced the childs age, the length of appellants sentence, the fact that he would not be released until July 2004 "which would be beyond the reunification period," the nature of his crime, and the fact that he had not had any type of counseling or rehabilitative efforts while incarcerated all those years. The courts remarks make clear that the court understood its obligation under section 361.5, subdivision (e)(1). We also note 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.)
Further, we interpret appellants claim that the court ignored evidence as little more than a request that this court reweigh the evidence and reach a different conclusion. However, we may not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.) Issues of fact and credibility are matters for the trial court alone. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.) We can decide only whether sufficient evidence supports the juvenile courts finding. (In re Laura F., supra, 33 Cal.3d at p. 833.)
Along this line, we add that while appellant contends the evidence of detriment was not clear and convincing, the "clear and convincing" standard of proof is not a standard for appellate review. (Crail v. Blakely (1973) 8 Cal.3d 744, 750.) The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal. (Ibid.) In other words, the clear and convincing test disappears on appeal and the usual rule of conflicting evidence is applied, giving full effect to respondents evidence, however slight, and disregarding appellants evidence, however strong. (Sheila S. v. Superior Court (1995) 84 Cal.App.4th 872, 881.)
Our review of the record, as detailed above, satisfies us that there was more than sufficient evidence to support the courts detriment finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) Given appellants lengthy incarceration, Melissa had never been in appellants care and had no relationship to speak of with him. The reasonable inference to be drawn from the one recent visit they had was that Melissa was uncomfortable, to the say the least, to even be in appellants presence. Further, while appellant tries to pick apart the evidence about his offenses and his incarceration, the fact remains that among his commitment offenses were rape and oral copulation and despite his many years of incarceration, he had so little insight into his criminal conduct that he apparently believed it was enough to take vocational training courses and never sought sexual offender counseling.
Last, most willing parents could likely benefit from services to improve their parenting skills. Nonetheless, the purpose of juvenile dependency reunification services is to improve the conditions requiring a dependent childs out-of-home placement within the time permitted so that the child can return to parental custody. (§ 361.5, subd. (a).) The evidence in this case was undisputed that even with services Melissa could not be placed with appellant before January 2004 because he was not scheduled for release from prison until July of that year. The court could consider this in evaluating the issue of detriment.
In conclusion, we hold the juvenile court properly denied appellant services and face-to-face visitation based on a finding of detriment supported by substantial evidence.
Remaining Issues Raised By Appellant
Appellant also argues there was no evidence to support other court findings that reasonable services had been offered to him prior to the February 2003 hearing. While we agree with appellants interpretation of the record, we do not conclude that the findings resulted in reversible error. Notably absent from appellants argument is any authority that the court must make such findings or absent such findings the court could not make its dispositional orders. Appellants reliance on Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011 in this regard is misplaced. Mark N., supra, revolved around a departments failure to maintain reasonable contact with an incarcerated father during a significant portion of the reunification period despite an order for services to the father. (Id. at pp. 1012-1013.) By contrast at a dispositional hearing, the issue is whether to afford services to the parent in the first instance. (§ 361.5.)
Without speculating as to what the court was attempting to do, we observe that the court, before ordering Melissas out-of-home placement, had to determine whether reasonable efforts were made to prevent or to eliminate the need for her removal. (§ 361, subd. (d).) Given appellants incarceration, the reasonable efforts issue, practically speaking, pertained to the agencys efforts vis-à-vis the mother. On this point, the record reflects the agencys reasonable efforts.
Finally, appellant also contends there is an inadequate record to establish that the agency complied with the notice requirements of the Indian Child Welfare Act (IWCA). In this regard, the mother had claimed Navajo Indian heritage. During the pendency of this appeal, the juvenile court conducted a review hearing at which it determined ICWA was inapplicable to Melissa. That finding is now final, there having been no appellate challenge to the ruling.
Having given the parties an opportunity to brief the propriety of judicial notice of the finding and the absence of an appeal and receiving no opposition on that point, we hereby take judicial notice of the juvenile courts August 14, 2003, minute order and a clerks declaration that as of October 22, 2003, no notice of appeal was filed from the August 14, 2003, hearing.
In light of the final ruling, we conclude appellants contention is moot. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) It is this courts duty to decide actual controversies by a judgment, which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. (Ibid.)
DISPOSITION
The courts dispositional orders herein are affirmed.