Opinion
A155329
12-03-2018
JEFFREY C., Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU et al., Real Parties in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1800643)
The juvenile court denied family reunification services to Jeffrey C. (Father) for his infant son Jameson C. (Minor), based on three of the bypass provisions in Welfare and Institutions Code section 361.5, subdivision (b), and set a hearing under section 366.26 to select a permanent plan for Minor. Father filed a petition for extraordinary relief from the dependency court order, arguing that the factual predicates for two of the bypass provisions were not established by clear and convincing evidence. Father does not challenge the factual basis for applying the third, which rests on his conviction for a violent felony, but argues that the court should "look at" the length of time since the conviction and his desire to make things better for his child. He also argues that, even if the bypass provisions properly apply, the court should have found it in the best interest of Minor to provide reunification services.
All further statutory references are to the Welfare and Institutions Code.
We conclude that substantial evidence supports the dependency court's order, and therefore we deny the petition on the merits.
FACTUAL AND PROCEDURAL BACKGROUND
A. Detention and Jurisdiction
Minor tested positive for amphetamines, opiates and methadone at the time of his birth in June 2018. A week later, the Contra Costa County Children and Family Services Bureau (Bureau) filed a petition under section 300, subdivisions (b), failure to protect, and (j), abuse of sibling. For subdivision (b), the Bureau alleged that Father had a long-standing substance abuse problem that put Minor at substantial risk of serious harm and neglect. For subdivision (j), the Bureau alleged that Father had driven a car while under the influence with Minor's half sibling (Sibling) as a passenger, that Father had failed to reunify with Sibling and that the Bureau would be recommending the termination of reunification services as to Sibling.
The petition includes allegations pertaining to Minor's mother as well as to Father. Because the mother is not a party to this appeal, we do not discuss the allegations against her.
At the detention hearing, Father denied the allegations of the petition, submitted on detention, and requested a contested hearing on jurisdiction. The court granted Father's request that his visits be separate from Minor's mother's visits.
At the jurisdiction hearing, the Bureau amended the petition with respect to section 300, subdivision (j), to allege that Sibling had been detained since October 2016 as a result of Father's substance abuse and that the Bureau was recommending terminating reunification services for Sibling. The Bureau submitted based upon the detention and jurisdiction report and findings and orders regarding Sibling's dependency case, for which the Bureau requested judicial notice. Father objected to the court making the findings in the petition, but offered no evidence. The juvenile court sustained the allegations in the petition under the clear and convincing evidence standard, finding that the Bureau "more than met its burden of proof." B. Disposition
In advance of the disposition hearing, the Bureau requested judicial notice of a July 2018 order terminating Father's reunification services as to Sibling. The Bureau also prepared a disposition report recommending denial of reunification services as to Minor on the basis of section 361.5, subdivisions (b)(10) and (b)(13), and a memorandum requesting denial of services on the basis of section 361.5, subdivisions (b)(10), (b)(12), and (b)(13). The disposition report, prepared at the end of July 2018, stated that the court had ordered weekly supervised visitation for Father; that there was a delay in starting visits because of Minor's hospitalizations; and that Father had not attended any visits since the visits were initiated. The memorandum, prepared at the end of August, stated that Father attended two of the three visits that had been scheduled so far that month. Father was on time to the first visit, late to the second, and the third was cancelled because Father did not confirm. Father was "appropriate" with Minor during the visits he had. Father asked the Bureau whether he could join Minor's mother's visits instead of having separate visits.
Section 361.5, subdivision (b)(10) applies when reunification services for a sibling or half sibling of the child were terminated because the parent failed to reunify with that child, but only if the court finds that the parent "has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling" from the parent. Subdivision (b)(12) applies when the parent "has been convicted of a violent felony, as defined in subdivision (c) of Section 667.5 of the Penal Code." Subdivision (b)(13) applies when the parent "has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court's attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan . . . on at least two prior occasions, even though the programs identified were available and accessible."
According to the Bureau, Father was convicted in 2004 of first degree robbery (Pen. Code, § 211/212.5), for which he was sentenced to three years, and an enhancement for personal use of a firearm in commission of a felony (Pen. Code, § 12022.53, subd. (b)) for which he was sentenced to 10 years.
Robbery is a "violent felony" for purposes of section 361.5, subdivision (b)(12), as is any violation of Penal Code section 12022.53. (Pen. Code, § 667.5, subds. (c)(9) & (c)(22).)
The Bureau reported that Father was arrested for child endangerment in October 2016, when he was at a gas station in the driver's seat of a car under the influence of a narcotic while Sibling was in the backseat. Sibling was detained, and Father was subsequently convicted of felony child abuse (Pen. Code, § 273a, subd. (a)) and sentenced to probation and jail time. Despite his 2004 robbery conviction, Father was ordered reunification services for Sibling in June 2017, a year before Minor was born, "with a case plan consisting of services for individual counseling, participate in random drug tests with negative results, successfully participate in an outpatient treatment program, refrain from using substances, and lastly, attend 1-3 AA/NA meetings and work a 12 step program." Father was participating in services and was doing very well at one point, but during the reunification period, in May 2018, Father violated his probation and was arrested for having a rifle and a loaded syringe in the car he was driving. He told law enforcement that he has been addicted to opiates since he was in prison, and recently had surgery on his neck for which he was again using opiates. From March to June 2018, Father had two negative drug tests, two positive drug tests, and failed to appear for 12 tests. The Bureau recommended the termination of reunification services for Sibling, and the juvenile court so ordered.
At the disposition hearing in Minor's case, held in early September 2018, the social worker testified that she spoke with Father by phone, but Father declined to meet with her and gave her no information about whether he was participating in services. Father had not drug tested since Minor was detained.
Father testified that he was recovering from surgery on his neck, and was working part time. He was receiving physical therapy and was taking medication for his neck pain; he testified, "They're weaning me off of the regular meds and then they put me on the Ibuprofen." Asked about a methadone clinic he had been attending, he said he was no longer attending because he was finally off methadone. He testified that he did not know he was supposed to participate in drug testing in connection with Minor's case.
Father's counselor at the clinic reported that Father stopped taking methadone in May 2018, about a week before his arrest.
Father was asked whether he was currently participating in substance abuse treatment, and responded that he was attending Narcotics Anonymous (NA) programs. The hearing was held on a Wednesday, and Father testified that the last meeting he attended was on Saturday. He said that he did not have any proof of attendance with him, but claimed to have attendance sheets for some of the meetings at his house. Father's testimony about his participation in the classes was somewhat confusing. He testified that he had regularly attended NA classes when he first got out of his residential program, and then "slacked off," but in May 2018, when he was arrested, he started attending again, three or four times a week. And he testified that when he received information by mail from the social worker in Minor's case about available services, he was "already going" to his usual NA classes, three or four times a week. But he also testified that from May to early July he was on an ankle monitor and was not permitted to go to NA meetings.
Father also testified that he heard from Minor's mother that services were not being offered to him.
After testimony was completed, the court heard argument. Father's counsel stated, "We are asking the Court to authorize reunification services in this case. I know the Court is very familiar with my client and his past circumstances. And he's asking for an opportunity to parent [Minor]. [¶] He has had some difficulties in the past. He has been working hard, trying to get over those difficulties. I know one of the previous barriers had been with his use of substances and methadone, to try to get off the other substances that he had been on. He's testified that now that [sic] he actually is off of methadone. He's resolved his other criminal case. He's resolved the situation regarding his neck surgery. And he would like the—and has been consistently attending NA and AA meetings. [¶] He would like the opportunity to continue to receive services so that he could reunify with his child. So that's what we're asking." After other parties argued, but before the matter was submitted, Father's counsel added, "[Father] just wanted me to reiterate that he was told by the social worker that they were not offering any services and that was the reason that he didn't believe that he needed to participate further. He thought the case was over, there were no more services to be had. And that was why he took the action or lack of action that resulted."
Once the matter was submitted, the juvenile court judge said, "So I will start there, where you just left off. I don't find that believable or credible at all in light of the testimony of the social worker and the evidence before the Court. [¶] . . . [T]hese parents have been involved in dependency proceedings now going back 2 years. They know very well the nature of these proceedings, services, how to interact with the [Bureau]. And it's a real shame . . . that the parents ended up on the path that they ended up. Because this went from a case where these parents were in a very long-term residential treatment program, addressing very significant substance abuse issues, to getting out of that program and things just fell apart for these parents. And it is my view a reflection of just how deep-seated their addiction and substance abuse issues truly are, and it's a shame. [¶] . . . [¶] . . . [Father is] clearly suffering. Right now he was almost—I barely could understand what he was testifying to up here. And he's testified in front of me before. He's gone from being kind of a self-confident, aware, articulate, bright person, to someone who I believe he's suffering from the effects of his continued drug use as he seems, in my view, under the influence today. Mumbling on the stand, seemed very confused. . . . [¶] And he has an extraordinary, very violent criminal history involving a robbery with the use of a gun. It in essence was a home invasion where the occupants of the home were tied up and father held a gun on them during the course of the robbery. To then where he gets out of drug treatment and he's found with a gun."
The court found "by clear and convincing evidence that the bypass provisions noted by the [Bureau] applies. I don't see how I then could possibly find, in spite of that, that it would be in the child's best interest to offer services given their history. . . . [¶] These parents have not moved the needle in my view. And I don't see how I could find by clear and convincing evidence that reunification is in the best interest of the child. That's what I have to find. And there is no evidence before me that that's the case at all. In fact, father has done very little to come forward and visit with the child. And he wants his visits with mother as opposed to his own time with the child."
The court accordingly denied reunification services and set a hearing to select a permanent plan for Minor under section 366.26. Father's petition timely followed.
DISCUSSION
A. Applicable Law
"[U]p until the time the section 366.26 hearing is set, the parent's interest in reunification is given precedence over the child's need for stability and permanency." (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) The dependency court is required to order family reunification services whenever a child is removed from the custody of his or her parent or guardian unless that court finds by clear and convincing evidence that one of the enumerated exceptions set forth in section 361.5, subdivision (b) applies. (§ 361.5, subds. (a) & (b); Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181, 1188.) "These enumerated 'bypass' provisions are the specific instances in which the Legislature has recognized 'that it may be fruitless to provide reunification services,' and once the court has found one of these specific instances applicable, 'the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources.' (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.)" (Melissa R. v. Superior Court (2012) 207 Cal.App.4th 816, 821.)
If the dependency court finds that section 361.5, subdivision (b)(10), (b)(12), or (b)(13) applies, then the court "shall not order reunification [for the parent] unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c)(2).)
We review the dependency court's order denying reunification services under section 361.5, subdivision (b), for substantial evidence: "[W]e must decide if the evidence is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the court's order was proper based on clear and convincing evidence." (Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 474.) B. Analysis
We begin with the bypass provisions on which the juvenile court relied, and conclude that the court did not err in applying them.
Father argues that the juvenile court erred in finding that section 361.5, subdivision (b)(10) applied, for two reasons. First, the decision to terminate services in Sibling's case was not final when the juvenile court applied subdivision (b)(10) in Minor's case, because a writ petition in Sibling's case was pending at the time of the disposition hearing in Minor's case. Second, Father made reasonable efforts to treat the problems that led to Sibling being removed from his care, as evidenced by his testimony that he attended NA, that he was off methadone, that he was being weaned off medication for his injured neck, and that he spoke with someone about child abuse prevention classes. These arguments are not persuasive.
Father cites no authority to support his assertion that an order terminating services in a sibling's case cannot justify bypass under section 361.5, subdivision (b)(10) unless it is final. The only authority he cites in connection with his argument, In re T.G. (2015) 242 Cal.App.4th 976, declined to hold that an order terminating a sibling's services must be final to serve as the basis for bypass under subdivision (b)(10). (Id. at pp. 987-988.) In any event, the writ petition in Sibling's case was denied on the merits even before Father filed his writ petition regarding Minor. (Jeffrey C. v. Superior Court (Oct. 3, 2018, A154911) [nonpub. opn.].) Accordingly, the issue is moot.
Moreover, substantial evidence supports the juvenile court's finding that Father had not made reasonable efforts to address the substance abuse problems that led to Sibling's removal. True, Father completed a residential treatment program in October 2017. But after that, he admittedly stopped going to NA. Although he testified that he resumed NA after he was found with a loaded syringe in May 2018, he presented no documentary evidence to prove his attendance. Father had a dismal record of drug testing in Sibling's case from March through June 2018; he did not participate in any drug testing in Minor's case; and he appeared to the juvenile court judge to be under the influence at the disposition hearing. Father refused to even meet with the social worker in Minor's case.
Father concedes that section 361.5, subdivision (b)(12) properly applies to him because he was convicted of a violent felony. Yet he argues that the court should consider that he was released from prison in 2015 and committed no more violent felonies. Father is to be commended for refraining from committing violent felonies after his release from prison, but he cites no authority to suggest that has any relevance to the application of subdivision (b)(12). The lack of a violent felony conviction issue may bear on the question of whether reunification was in Minor's best interest, but so does Father's 2017 conviction for felony child abuse, which Father does not mention.
Father also argues that the court should consider that he "continued to show a desire to turn things around to make things better for his child." Father does not support his argument with any citation to the record, and we deem it waived. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
Father argues that the juvenile court erred in finding that section 361.5, subdivision (b)(13) applied, claiming that because the order terminating services in Sibling's case was not final at the time of the disposition hearing in Minor's case, the juvenile court could not find that Father had "resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition" in Minor's case. This argument is meritless. As an initial matter, the writ petition challenging the order terminating services in Sibling's case was denied on the merits even before Father's petition was filed. (Jeffrey C. v. Superior Court (Oct. 3, 2018, A154911) [nonpub. opn.].) Regardless, there is no dispute that Father had been ordered to participate in drug treatment, including drug testing, in Sibling's case, and there is no dispute that from March through June 20, 2018, before the petition regarding Minor was filed, Father failed to present himself for most of his tests, and tested positive on two of the four occasions when he did show up. Proof of resistance to treatment may come in the form of resumption of regular drug use after a period of sobriety. (Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 780.) Father suggests that he simply suffered a "brief relapse," that should not be considered resistance. (Ibid.) But substantial evidence, including Father's failure to attend NA programs after he left residential treatment, his refusal to participate in services in Minor's case and his conduct at the disposition hearing in Minor's case, supports the trial court's finding that Father's conduct from March through June 2018 demonstrated resistance to court-ordered treatment.
Father relies on section 361.5, subdivision (c)(2) to argue that even if the juvenile court properly applied the bypass provisions, the court erred in declining to find by clear and convincing evidence that reunification is in Minor's best interest. The argument is meritless. The only evidence that Father offers to support his argument is his conclusory testimony at his disposition hearing that he was "trying to do everything I can to [do] better for my child," and the social worker's report that she was unware of any concerns regarding Father's interactions with Minor during the few visits that took place. Father relies on In re Ethan N. (2004) 122 Cal.App.4th 55, for the proposition that "[t]he concept of a child's best interest 'is an elusive guideline that belies rigid definition. Its purpose is to maximize a child's opportunity to develop into a stable, well-adjusted adult.' " (Id. at p. 66, quoting Adoption of Michelle T. (1975) 44 Cal.App.3d 699, 704.) Yet Father fails to show how the meager evidence he cites could constitute clear and convincing evidence that providing him reunification services would provide any benefit at all to Minor, particularly in light of the other evidence before the juvenile court.
The record does not disclose the number of visits Father had with Minor, but testimony from Father and social worker indicates there were a total of three or four. --------
In sum, we conclude that Father has not shown any error by the juvenile court in denying him reunification services.
DISPOSITION
Father's petition for extraordinary writ is denied on the merits. Our decision is final as to this court immediately. (Cal. Rules of Court, rules 8.450(a), 8.490(b)(2)(A).)
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.