Opinion
NOT TO BE PUBLISHED
Los Angeles County Superior Court No. CK58013
ORIGINAL PROCEEDINGS in mandate. Sherri S. Sobel, Referee.
Law Offices of Katherine Anderson, Victoria Doherty and John Reilly for Petitioner.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Judith A. Luby, Principal Deputy County Counsel for Real Party in Interest.
ALDRICH, J.
INTRODUCTION
Jose P. brings this petition for extraordinary writ to challenge the jurisdictional and dispositional orders of the juvenile court that sustained a petition (Welf. & Inst. Code, § 300), and denied Jose reunification services. (§ 361.5.) We deny the petition.
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
1. The earlier dependency of J.’s older siblings
This family has been before this court on two previous appeals in the dependency of J.’s older sisters. We refer to our previous opinions for much of the background in this dependency.
Both parents have criminal histories. Jose has a history of warrants and convictions between 1999 and 2002 for corporal injury to a spouse. L.P. has convictions or sustained juvenile petitions for battery on a police officer or emergency worker and burglary. Both L.P. and Jose admitted they use crack cocaine. In July 2004, the family entered into and breached a voluntary family maintenance contract with the Department of Children and Family Services (the Department).
In February 2005, the Department responded to a child-abuse referral at the family home and found ant poison spread everywhere including on the children’s toys and clothing and within reach of the girls. Jose appeared to be on drugs and the house was filthy. L.P. reported that Jose was using drugs and cooked them in the family bathroom.
The juvenile court sustained a section 300 petition naming Jose and L.P. as the offending parties. It awarded the parents reunification services. Such services were terminated by the court in the fall of 2005. Jose had not visited the children regularly. The juvenile court terminated L.P.’s and Jose’s parental rights to the three girls in June 2006.
2. J.’s dependency
J. was born prematurely in early 2007. A month later, J. continued to be unable to suck, although he was breathing on his own. The hospital social worker explained that L.P. has had ten pregnancies and only four births, all of which were premature, because she has an “incompetent cervix.” According to the Department’s detention report, L.P. had failed to attend prenatal medical appointments. She had a positive toxicology screen for cocaine in October 2006 while she was pregnant with J., and tested positive again the day before the baby’s birth.
Jose left L.P. when she became pregnant with J. Then, after J. was born, L.P. and Jose announced that they had reconciled and were planning to raise the baby together.
Jose stated he did not understand why his parental rights to J.’s siblings had been terminated. He stated he completed the reunification services that the court had ordered, but was unable to attend the section 366.26 hearing because of “medical problems.” He had a certificate of completion from a substance abuse program, which document he stated he could produce upon request. He denied having used illegal substances for the past two years. He offered to test to prove he did not use drugs. Jose stated he had always wanted to have a boy and now that he finally has one, it “hurts” that the Department was trying to take the boy away from him.
That same month, Jose went to jail. However, he provided the Department with a certificate from the Inglewood Recovery Center confirming that he had enrolled in an outpatient program in March 2005 and by October 2005 (more than one year before J’s birth), he had completed all of the program requirements and made positive lifestyle changes by attending a total of 37 group sessions, 16 individual sessions, and producing negative results in each of his 17 drug tests.
The Department concluded that the parents’ extensive history of substance abuse and failure to comply with the voluntary family maintenance contract or reunification services put J. at “very high risk for future neglect due to caretaker incapacity.” Jose had been ordered to undergo reunification services for J.’s siblings, including parenting education, substance abuse and counseling, and supportive departmental services. He was ordered to enter a drug treatment program until he returned to court. He had been told four times, at the detention, jurisdiction, progress review, and the six-month (§366.21, subd. (e)) hearings, that a missed test was a dirty test. The Department observed, although Jose was provided with services, that he was unable to resolve his problems.
Hence, the Department filed a petition under section 300, subdivision (b) alleging general neglect. With respect to Jose, the petition alleged “The child J[.]’s father Jose P[.] has a history of substance abuse, which renders the child’s father incapable of providing regular care for the child. Further, the child’s siblings . . . received permanent placement services due to the father’s substance abuse. Further, the child’s father’s history of substance abuse endangers the child’s physical and emotional health, safety and well-being and creates a detrimental home environment, placing the child at risk of physical and emotional harm and damage.” The petition also notified Jose and L.P. that the Department might seek an order denying reunification services pursuant to section 361.5, subdivision (b). The juvenile court detained J.
In advance of the jurisdiction hearing, L.P. admitted the allegations of her cocaine use. Jose admitted knowing that L.P. had a long history of drug abuse, and that when he left her in the past, she would start using again. He denied knowing whether L.P. used drugs during her pregnancy with J. because, he explained, he was not living with her. He claimed to have had no communication with L.P. since he lost his parental rights to the other children. He also claimed that the older siblings had been removed because of L.P.’s drug use, but made no mention of his own. L.P. stated that Jose used cocaine, but that he does not use anymore and has been clean for a while. Jose admitted having used cocaine, but explained that after enrolling in the drug program he did not use “for a long time.” Jose admitted to only one prior arrest. He claimed that because he was not a legal resident of the United States, he did not possess the proper identification for a live-scan. He also claimed to have completed a domestic violence program, but provided no evidence of completion.
At the jurisdiction hearing, held in May 2007, Jose submitted three receipts indicating that he had given urine specimens on March 2, 2007, April 12, 2007, and April 23, 2007. No test results were recorded. Jose’s attorney asserted that Jose provided L.P. with an apartment and groceries during her pregnancy with J., contradicting his claim not to have had communication with her during that time and not to know whether she was abusing drugs.
At the close of the hearing, the juvenile court sustained the petition in its entirety under section 300, subdivision (b). Thereafter, the court denied Jose reunification services on the grounds that (1) the court had terminated Jose’s reunification services in the earlier dependency proceeding; (2) the court had terminated his parental rights to J.’s siblings in the earlier dependency proceeding; and (3) Jose had an unresolved history of chronic drug use. (§ 361.5, subds. (b)(10), (b)(11), & (b)(13).) After the court set the section 366.26 hearing, Jose and L.P. filed petitions for extraordinary writ review.
CONTENTIONS
Jose, joined by L.P., contends that the petition’s allegations do not support a finding of jurisdiction; the jurisdictional findings are not supported by the evidence; and the court committed reversible error when it denied him reunification services.
DISCUSSION
1. The jurisdictional ruling
Jose contends that the Department failed to present any evidence that he was using drugs or that he had not resolved his drug abuse and the Department produced no evidence of a nexus between his past history of drug abuse and a substantial risk of harm to J. in 2007. That being the case, Jose argues, there is no evidence to support the petition’s allegations.
The “circumstances under which the juvenile court is authorized to take jurisdiction of a child are narrowly defined. [Citation.]” (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.) The petition must contain a concise statement of the facts supporting the conclusion that the child is a person within the definition of a statutory provision. (§ 332, subd. (f).) We must also determine “whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citation.]” (In re Nicholas B., supra, at p. 1134, italics added.)
“At a jurisdictional hearing, a finding that the minor is a person described in section 300 must be supported by a preponderance of the evidence. [Citations.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) The petitioner in a dependency proceeding, i.e., the Department, carries the burden to prove that the child who is the subject of a petition comes under the juvenile court’s jurisdiction. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.)
Our review is governed by the substantial-evidence rule. Thereunder, “we have no power to pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or determine where the weight of the evidence lies. Rather, we ‘accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. [Citation.]’ [Citation.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. [Citation.]” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on other grounds, Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) “ ‘In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact . . . .’ [Citations.]” (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) “If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed. [Citations.]” (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
Subdivision (b) of section 300 authorizes dependency jurisdiction when “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child, or the willful or negligent failure of the child’s parent . . . to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent . . . to provide the child with adequate food, clothing, shelter, or medical treatment . . . .” (Italics added.)
Hence, a successful petition under section 300, subdivision (b) must allege: “ ‘(1) neglectful conduct by the parent in one of the specified forms [i.e., the parent’s failure or inability to adequately supervise or protect the child]; (2) causation; and (3) “serious physical harm or illness” to the minor, or a “substantial risk” of such harm or illness.’ ” (In re Heather A., supra, 52 Cal.App.4th at p. 194, italics added, citing In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) Based on the allegation in the petition, the Department carries the burden to prove by a preponderance of the evidence that Jose’s drug abuse renders him unable to protect J. and this inability caused the baby harm or poses a substantial risk of serious physical harm.
Jose’s appeal is aimed at both the first and third elements. That is, he contends that the Department failed to prove neglectful conduct, the first element, because it failed to prove that Jose is currently abusing drugs. In Jose’s view, the evidence shows that he is no longer using drugs because he completed a drug rehabilitation program in October 2005, more than a year before J. was born, and he had tested for drugs as late as April 23, 2007. He also points to evidence that he has gained weight, and to the testimony of his family that he is clean, as proof that he is no longer using illegal substances. There being no evidence of the neglectful conduct alleged in the petition, he argues, there is no evidence of the third element, namely, a nexus between his past drug abuse and a substantial risk of future serious physical harm to J. We disagree.
Looking at the evidence as we are required to do, with respect to the first element, there is no dispute that during the first dependency proceeding in 2005, Jose admitted abusing drugs; L.P. reported that Jose was using and cooking drugs in the family bathroom; and at least once, Jose appeared to the Department’s social workers to be on drugs. The juvenile court was familiar with the earlier dependency proceeding, having presided over it, and so it was aware of Jose’s behavior during that time. Thus, the court knew that it had ordered Jose to undergo a drug treatment program until he came back to court. The court also knew that it had told Jose at least four times that a missed drug test constitutes a dirty test. Nonetheless, Jose simply disappeared after the six-month review hearing (§ 366.21, subd. (e)). As a consequence, Jose had not undergone the required drug-treatment program in that dependency proceeding, and he thereafter lodged numerous missed, i.e., positive tests. Therefore, the juvenile court had sufficient evidence to find that Jose was an admitted drug abuser who had failed to resolve that neglectful conduct.
Jose’s evidence, namely, the certificate of completion in October 2005 and the three tests he submitted to the juvenile court for March 2, 2007, April 12, 2007, and April 23, 2007, do not rebut the court’s findings. Although he entered into a drug rehabilitation program, it ended in 2005 and did not satisfy the court’s requirement in the earlier dependency that he continue in the program until he returned to court. More important, Jose’s three drug tests in the spring of 2007 do not reflect a result and hence do not amount to negative results sufficient to refute the court’s evidence. Finally, the court was entitled to and did disbelieve the testimony from Jose’s family. (In re Casey D. (1999) 70 Cal.App.4th 38, 53.) The court noted that the paternal grandmother testified that she did not want to get involved because she works and acknowledged she could not even name Jose’s children. We may not reweigh that evidence or make independent credibility findings. (Id. at pp. 52-53.) Indeed, as the Department has noted, Jose himself has made numerous contradictory statements entitling the juvenile court to disbelieve his assertions that he is drug-free. Stated otherwise, the juvenile court had substantial evidence to find that Jose was an admitted drug abuser and his evidence of rehabilitation was insufficient to rebut that finding.
Turning to the third element, “While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citations.] Thus the past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of physical harm; ‘[t]here must be some reason to believe the acts may continue in the future.’ [Citations.]” (In re Rocco M., supra, 1 Cal.App.4th at p. 824, fn. omitted, italics added.)
It has been said that “[s]ubdivision (b) means what it says. Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness. [¶] In determining what constitutes a substantial risk of serious physical harm, some general guidance may be drawn from subdivision (a) of section 300 . . . .” (In re Rocco M., supra, 1 Cal.App.4th at p. 823.) A substantial risk of serious future injury may be found “based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child’s siblings, or a combination of these and other actions by the parent . . . which indicate the child is at risk of serious physical harm.” (§ 300, subd. (a), italics added.)
Jose contends that, because there is no evidence he is currently abusing drugs, there is no evidence that he poses a substantial risk of future serious physical harm to J. However, as explained supra, the record shows not simply that Jose’s drug abuse has not been resolved, but also that Jose disappeared from the court’s radar screen in 2005 and did not reappear until after J. was born. What is worse, during that time, Jose left L.P. when she was pregnant with J., knowing that L.P. had a history of high risk pregnancies, having lost all but four of her ten pregnancies, and knowing that her reaction to adversity would be to turn to drugs, which is exactly what occurred. Jose even acknowledged to the Department that a person using drugs cannot take care of children. Nonetheless, Jose showed no concern that the fetus would be at risk. As a consequence, the child was born premature, unable to suck, and unfit to leave the hospital for some time after his birth. This evidence more than substantially supports the juvenile court’s finding of Jose’s failure to protect J. and his “inability . . . to provide regular care for the child due to [Jose’s] . . . substance abuse.” (§ 300, subd. (b).) Therefore, the evidence supports the trial court’s finding that, at the time of the jurisdiction hearing, Jose’s drug abuse posed and continues to pose a substantial risk of harm to J.
2. The dispositional ruling
Jose contends that the juvenile court committed reversible error in denying him reunification services under section 361.5, subdivisions (b)(10), (b)(11), and (b)(13). We disagree.
The juvenile court must order services “whenever a child is removed from a parent’s . . . custody.” (§ 361.5, subd. (a), italics added.) The court “may order services for the child and the biological father . . . .” (ibid., italics added),“unless the case falls within the enumerated exceptions in subdivision (b).” (Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181, 1188, italics added.) “As a general rule, reunification services are offered to parents whose children are removed from their custody in an effort to eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. . . . Nevertheless, as evidenced by section 361.5, subdivision (b), the Legislature recognizes that it may be fruitless to provide reunification services under certain circumstances. [Citation.]” (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478; cf. In re Joshua M. (1998) 66 Cal.App.4th 458, 471.) Subdivision (b) of section 361.5 allows the juvenile court to deny reunification services to a parent when the court finds, by clear and convincing evidence, the presence of one of fifteen exceptions. Hence, there is no constitutional “ ‘ entitlement’ ” to reunification services; such services are a benefit. (In re Joshua M., supra, at p. 476, italics added.) “Once it is determined one of the situations outlined in subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citation.]” (In re Baby Boy H., supra, at p. 478.)
Jose contends there is no evidence to support the juvenile court’s finding that he had not made reasonable efforts to treat the problems that led to the removal of J’s siblings. We review the court’s findings underlying an order denying services under the substantial-evidence test. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 599-600.)
Among the two bases the juvenile court cited for denying Jose services were section 361.5, subdivisions (b)(10) and (b)(11). In the first of two prongs, subdivision (b)(10) authorizes the juvenile court to deny services when “the court ordered termination of reunification services for any siblings or half-siblings of the child because the parent . . . failed to reunify with the sibling or half-sibling after the sibling or half-sibling had been removed from that parent . . . pursuant to Section 361 . . . .” The first prong of subdivision (b)(11) allows the juvenile court to deny services when “the parental rights of a parent over any sibling or half-sibling of the child had been permanently severed . . . .” Both subdivisions contain the same second prong, namely 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 or half-sibling of that child from that parent . . . .” (§ 361.5, subds. (b)(10) & (b)(11).)
“The exception at issue here, section 361.5, subdivision (b)(10), recognizes the problem of recidivism by the parent despite reunification efforts. Before this subdivision applies, the parent must have had at least one chance to reunify with a different child through the aid of governmental resources and fail to do so. Experience has shown that with certain parents, as is the case here, the risk of recidivism is a very real concern. Therefore, when another child of that same parent is adjudged a dependent child, it is not unreasonable to assume reunification efforts will be unsuccessful. Further, the court may still order reunification services be provided if the court finds, by clear and convincing evidence, that reunification is in the best interests of the child. (§ 361.5, subd. (c).)” (In re Baby Boy H., supra, 63 Cal.App.4th at p. 478.) Our Supreme Court has affirmed Baby Boy H.’s “understanding of the legislative purpose in enacting section 361.5, subdivision (b)(10) and with its interpretation of the statute.” (Renee J. v. Superior Court, supra, 26 Cal.4th at p. 745.)
Here, quite apart from the fact that as biological father, Jose is not automatically entitled to services (§ 361.5, subd. (a) [“the juvenile court may order services for the child”]), these subparagraphs of subdivision (b) apply to justify denial of services to Jose. It is undisputed that reunification services for J.’s three older siblings was terminated because Jose failed to reunify with them. (§ 361.5, subd. (b)(10).) It is also undisputed that his parental rights over J.’s siblings were terminated. (§ 361.5, subd. (b)(11).) Thus, the first prongs of these subdivisions are satisfied.
As for the second prong of section 361.5, subdivisions (b)(10) and (b)(11), the evidence supports the juvenile court’s implicit finding that Jose “has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling[s].” The record shows that while Jose underwent a drug rehabilitation program, he did not comply with the services as ordered and then simply disappeared, flouting the court’s orders. Consequently, the juvenile court had no evidence that what effort Jose actually made to treat his drug abuse problems was reasonable.
What is more important, however, Jose inappropriately focuses on the drug-related issues. Yet, “the problems that led to removal” of J.’s siblings included much more than Jose’s drug abuse. The juvenile court has always been concerned with the violence in this family, as evidenced by Jose’s numerous charges of spousal abuse. The court was influenced by Jose’s failure to protect his children (§ 300, subd. (b)) as evidenced by his cooking drugs in the family home and spreading ant poison around the house where the babies would have easy access to it. Jose provided no evidence that he made any attempt to address these issues or that he completed any other portion of the reunification services ordered in the earlier dependency proceeding.
We observe that a reunification plan is not Jose’s only opportunity to reunify and denial of such services does not render termination of his parental right automatic. As the Supreme Court has noted, a section 388 petition is available to obtain a modification of the juvenile court’s previous orders, given some sufficiently compelling new evidence, such as, among other things, continual, regular, clean drug-tests, parenting classes, and regular visits. (Renee J. v. Superior Court, supra, 26 Cal.4th at p. 750.) Moreover, the juvenile court may still order reunification services if it finds, by clear and convincing evidence, that reunification is in the best interest of the child. (§ 361.5, subd. (c).)
DISPOSITION
The petition is denied. The order to show cause issued on June 26, 2007, is discharged.
We concur: KLEIN, P. J., CROSKEY, J.