Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. CK47201, Jan G. Levine, Judge.
Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
INTRODUCTION
Kristina B. (Mother) appeals from the juvenile court’s order denying reunification services for three of her four children. The trial court relied upon section 361.5, subdivision (b)(10), which provides that reunification services need not be offered to a parent of dependent children if: (1) reunification services for a sibling of those children previously had been terminated because the parent failed to reunify with the sibling and (2) the parent thereafter had not made a reasonable effort to treat the problems that led to the sibling’s removal. We conclude that substantial evidence supports the trial court’s order and therefore affirm.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. The First Dependency Court Proceeding
Mother has two sons by different fathers. The oldest son, N.L., was born in August 1995; his father is Michael S. The younger son, C.W., was born in May 1998; his father is Conrad W.
In January 2002, the juvenile court sustained a section 300, subdivision (b) petition on the basis that Mother and Conrad W., on numerous occasions, had engaged in violent physical alterations in the presence of her two sons, placing the boys at risk of serious physical and emotional harm. The court declared the two boys dependents of the juvenile court and removed them from parental custody. The court ordered reunification services for Mother, including a parenting education program, individual counseling to address issues of domestic violence and anger management, random drug testing and a drug rehabilitation program if she either missed her drug tests or tested positive.
In April 2003, the juvenile court terminated reunification services for Mother. Although she had visited N.L. every weekend, her visits with C.W. were erratic. She had failed to complete any of the court-ordered programs.
At the April 2003 hearing, Mother’s attorney told the trial court: “The Mother’s performance here has not been very good. I think she has to concede to that. It has not been a good performance.”
In April 2004, the juvenile court terminated jurisdiction over C.W. who had been returned to his father’s custody seven months earlier. N.L. continued as a dependent of the court, being placed in various homes.
2. The Second Dependency Court Proceeding
Mother subsequently had two daughters, K.W. 1 (born in October 2004) and K.W. 2 (born in February 2006). Conrad W., the father of C.W., is also the father of these two girls.
In September 2007, Conrad W. was arrested for theft at a Ralph’s supermarket; the three children were with him.
In October 2007, Department filed a section 300 petition in regard to C.W., K.W. 1 and K.W. 2. The juvenile court ordered the children detained and placed them with their paternal grandparents. In an interview with Department, C.W. stated that Mother had lived with them but that he had not seen her since she had left for Seattle a year earlier. C.W. did not know how to contact her. Conrad W. told Department that he had not seen Mother since June 2007 when she had been arrested and that they “always had an on again off again relationship.” The paternal grandparents told Department that Mother and Conrad W. smoked marijuana on a regular basis.
The Los Angeles County Department of Children and Family Services.
Shortly thereafter, Department filed an amended section 300 petition to include allegations against Mother regarding frequent drug use and domestic violence. After Department learned that Mother was in state prison in Chowchilla, one of its investigators conducted a 15-minute phone interview with her on November 14, 2007. Mother told the investigator that she had left her family on July 7, 2007 to serve time for her second petty theft conviction. She conceded that she and Conrad W. had a long history of domestic violence. She expected to be released in February or March 2008. She denied having a history of drug use. She told the investigator: “I’m trying for the Mother Infant Program here now when I’m released. I would like my kids back. . . . I’ll do whatever they need me to do now.”
On November 21, Department received a 5-page handwritten letter from Mother. Mother wrote that while Conrad W. was a drug abuser, she did not use drugs. Mother stated that Conrad W. had physically abused her for 11 years; that he repeatedly had threatened her and their children; and that he had forced her to commit crimes, including the one for which she was then serving time. In 2004, she had stopped calling the police about Conrad W.’s abuse because he had threatened to kill the children. She denied ever having abandoned her children and claimed she had been with them since 2004. As for addressing her domestic violence situation, she wrote: “I requested to be put in the A+ Safe @ home program. I felt before being incarcerated that he [Conrad W.] was going to hurt me.” She also wrote: “I would love to have my children @ the Mother infant program. . . . I will do whatever the court asks & extra.”
She claimed: “Since I’ve been in jail, I was attending parenting classes, & Drug & Alcohol & personally & honestly I don’t do drugs! I have screamed for help for 5 yrs. to every resource.” She stated that she wanted to regain custody of her four children and, in that regard, set forth her goals as follows. “1. Retrieve housing either [through] Mother infant program or a drug program to [satisfy] the Courts. [¶] 2. Parenting – Because no parent is perfect and shall allow room for change. [¶] 3. DV – counseling – classes. [¶] 4. Get a job. [¶] 5. Blood test ONLY. Requested by Me! If Conrad [W.] wins this, it will [be] because you believed his convincing lies.” Her letter concluded: “Please help me get my life back. I need the Safe @ Home program.”
Two weeks later, Mother sent another letter to Department’s investigator. This communication, addressed to the judge of the “childrens court,” reiterated that Conrad W. was violent and had threatened both her and her children. Mother claimed: “Since I’ve been in jail, I was attending parenting classes, & Drug & Alcohol & personally & honestly I don’t do drugs! I have screamed for help for 5 yrs. to every resource. My children aren’t used to being around [their] abusive father.” She stated: “Please call Lynwood jail to [verify] that I took DV class & Parenting & Drug & Alcohol classes. Those papers of [verification] are in my file in Van Nuys Superior Court.” She reiterated the goals she had set forth in her earlier letter, including regaining custody of her children.
On December 18, 2007, the juvenile court conducted several proceedings in Mother’s presence. First, the court sustained the amended section 300 petition as to the three children. It found that Mother’s history of drug use rendered her incapable of providing regular care for C.W., K.W. 1 and K.W. 2 and put them at risk of physical and emotional harm and that Mother’s history of engaging in domestic altercations with Conrad W. endangered the three children’s physical and emotional health and placed them at risk of harm. The court found by clear and convincing evidence that there would be a substantial danger to the children were they returned to Mother’s care and that there was no reasonable means to protect them without removing them.
N.L. was in a foster home and therefore not part of the second dependency proceeding.
Department, relying upon subdivision (b)(10) of section 361.5, urged that no reunification services should be provided to Mother. To argue for a contrary result, Mother testified. She was still in prison with a scheduled release date of March 30, 2008. She conceded that she had failed to reunify with N.L. and that she had made no efforts to reunify with him prior to her present incarceration. When asked what efforts she had made recently to address the problems which had resulted in N.L.’s removal from her custody, she replied: “I’m currently seeking domestic counseling. I’m reading every resource humanly possible that my bridging teacher gives me, resource books, to take care of my business. I write letters to foundations, organizations, for housing and counseling, group counseling for me and him [N.L.], individually, and anything possible to change and get him [N.L.] back. [¶] . . . [I want to be] enrolled before I step out the prison doors. I want to make sure I have housing arrangements, counseling arrangements. I want to have everything when I walk out the door.” (Italics added.) She testified that she intended while incarcerated to take classes “[a]s soon as they’re available.” She explained she was now making these efforts because “[t]hey [her children] need me. I am their Mother. I have to do what I got to do to take care of them because, evidently, the way this is going right now, it’s just not right, not right the way they’re living.”
The trial court denied Mother reunification services. It explained:
“With respect to reunification services, I – I reluctantly have to deny you those services. Now, that doesn’t mean that you shouldn’t do what you need to do. I would urge you very strongly that, at the earliest possible moment, whether it’s while you’re still in custody or released, that you get into a drug program and get some domestic violence counseling. And if you make the court aware that you’ve done that, I’ll order the Department to give you courtesy testing so that you can ask me to change my order. But I need a showing from you that you are going to make an effort to change your life around. [N.L.] is 12 years old and he’s a really good kid and he’s by himself . . . and lonely so, you know, he’s going to need you. But the sad truth is, he’s grown up without you and that clock just keeps ticking and these kids are going to end up growing up without you, too, unless you do change your life. But under the law, I need to make efforts to get them squared away as quickly as possible so that’s what I’m going to do.
“So the court’s going to find by clear and convincing evidence that [Mother] is a person described by Welfare and Institutions Code 361.5(b)(10), in that the court has previously ordered termination of reunification services for siblings of these children and in the subsequent time period [Mother] has not made a reasonable effort to treat the problems that lead to their removal, the court is not going to give her any reunification services.”
This appeal follows.
DISCUSSION
Mother contends that “substantial evidence did not support the juvenile court’s order denying reunification services to [her].” We are not persuaded.
Generally, the juvenile court is required to order reunification services when children are removed from parental custody. However, section 361.5, subdivision (b) provides that “[r]eunification services need not be provided to a parent . . . when the court finds, by clear and convincing evidence . . .: [¶] (10) That the court ordered termination of reunification services for any siblings . . . of the child because the parent . . . failed to reunify with the sibling . . . after the sibling . . . had been removed from that parent . . . 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 . . . from that parent.” “In enacting section 361.5, subdivision (b)(10), ‘the Legislature has made the decision that in some cases, the likelihood of reunification is so slim that scarce resources should not be expended on such cases.’ [Citation.]” (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) The statute “provide[s] a parent who has worked toward correcting his or her problems an opportunity to have that fact taken into consideration in subsequent proceedings; it was not [enacted] to create further delay so as to allow a parent, who up to that point has failed to address his or her problems, another opportunity to do so.” (In re Harmony B. (2005) 125 Cal.App.4th 831, 843.)
To apply this statutory provision, the trial court must find both that (1) the parent (here, Mother) previously failed to reunify with a sibling (here, N.L.) of the children for whom she now requests reunification services and (2) the parent has not subsequently made reasonable efforts to treat the problems that led to the removal of the sibling. (In re Albert T. (2006) 144 Cal.App.4th 207, 217 (Albert T.).)
In this case, Mother concedes that she had previously failed to reunify with N.L. Thus, the issue is whether the trial court properly found that Mother subsequently had not made a reasonable effort to treat the problem of domestic violence (the cause of N.L.’s removal from her). We review the trial court’s finding for substantial evidence. (Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at p. 96.) Under that standard of review, “we examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defer to the lower court on issues of credibility of the evidence and witnesses. [Citation.] We must resolve all conflicts in support of the determination and indulge all legitimate inferences to uphold the court’s order. Additionally, we may not substitute our deductions for those of the trier of fact. [Citations.]” (Albert T., supra, 144 Cal.App.4th at p. 216.)
Here, the juvenile court removed N.L. from Mother’s custody in January 2002 because of domestic violence. The trial court ordered various reunification services to address that problem. Mother failed to avail herself of any of them, resulting in an April 2003 order terminating reunification services. For the next four years, Mother did nothing to address domestic violence although Conrad W. continued to abuse her and the children. She never sought out programs or counseling to help her and, in 2004, she stopped calling the police about Conrad W.’s acts of violence. It was not until after she was arrested in 2007 that Mother began to take steps to address the problem. Her December 2007 letter claimed that she took parenting and domestic violence classes while in the Lynwood jail but she presented no document(s) to the trial court to substantiate that claim. Further, her December 2007 testimony described in the most general terms, but again without any evidentiary corroboration, her efforts to obtain assistance in the future, be that while still incarcerated in state prison or following her release. But this testimony did give the trial court the invaluable opportunity to evaluate whether Mother was credible in claiming that she had, in fact, made reasonable efforts to address the domestic violence situation. In finding that Mother had not made reasonable efforts to address her problem, the trial court implicitly found her credibility wanting. We will not disturb that credibility determination. (In re Tania S. (1992) 5 Cal.App.4th 728, 733.) Coupling this implied finding with the uncontroverted evidence that she had made no efforts in the previous four years to address domestic violence, we conclude that substantial evidence supports the trial court’s order denying reunification services.
Mother next argues that the trial court’s order must be reversed because “[t]here was clear and convincing evidence that reunification services were in the best interests of the children.” (Boldface omitted.) She relies upon subdivision (c) of section 361.5 which provides, in relevant part, that the trial court “shall not order reunification for a parent . . . 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.” This statutory provision gives the trial court the discretion to order reunification services notwithstanding its finding that section 361.5, subdivision (b)(10) applies if it also finds that reunification is in the best interests of the child. (In re Albert T., supra, 144 Cal.App.4th at p. 218, fn. 5.)
Department urges that Mother has forfeited this argument because she did not raise it below. We agree. “A party on appeal cannot successfully complain because the trial court failed to do something which it was not asked to do.” (In re Cheryl E. (1984) 161 Cal.App.3d 587, 603; see also In re Alanna A. (2005) 135 Cal.App.4th 555, 562 [a party may not raise for the first time on appeal a fact-driven theory].) Here, Mother’s attorney argued only that the trial court should exercise its discretion to find section 361.5, subdivision (b)(10) inapplicable. She never argued that were the court to find the statute applicable, it should nonetheless exercise its discretion to order reunification services because such services would be in the children’s best interest. Mother attempts to avoid the force of this conclusion by arguing that her two letters and testimony “clearly implied . . . that reunification services were being requested and thus, in the best interests of the children.” We disagree. Nothing in those letters and testimony supports that claim. In any event, no evidence was produced that it would have been in the best interests of Mother’s three children to order reunification services.
She argued: “361.5(b)(10) is a discretionary statute, not a mandatory statute. I’ve spoken with Mother extensively this morning and have read her letters to the court and social worker. She readily admits that she failed to reunify with [N.L.] and [C.W.] previously. She believed that she was, at the time, making the best possible decision and put [N.L.’s] safety first. I believe that she has made subsequent reasonable efforts to treat the problems leading to the removal of the siblings in that she is incarcerated behind bars. She’s written numerous letters, she’s sought out the hot line, she’s sought out referrals, and is intending to do the classes, testing, programs, et cetera, counseling. Whether or not she receives family reunification, I’d like to see the court allow Mother six months to reunify. Thank you.”
DISPOSITION
The December 18, 2007 order denying reunification services to appellant is affirmed.
We concur: MANELLA, J. SUZUKAWA, J.