Opinion
F084392
03-20-2023
In re D.P., a Person Coming Under the Juvenile Court Law. v. JASON P., Defendant and Appellant. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent,
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant. Margo A. Raison, County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County No. JD143039-00 Christie Canales Norris, Judge.
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.
Margo A. Raison, County Counsel, and Jennifer E. Feige, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT [*]
Jason P. (father) and K.B. (mother) are the parents of daughter D.P. (born August 2020). Father appeals the juvenile court's dispositional order bypassing him for reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(12), which allows a court to bypass a parent for reunification services who has been convicted of certain violent felonies. Father contends there was insufficient evidence supporting the juvenile court's bypass order.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL SUMMARY
A. Petition and Detention
In March 2022, D.P.'s infant half sibling suffocated in his sleep while left unsupervised by mother, which resulted in his death. During the investigation, law enforcement responded to the family home and deemed it a health and safety hazard. Thereafter, the Kern County Department of Human Services (department) filed a petition on behalf of D.P. pursuant to section 300, subdivision (b) (failure to protect). The petition alleged mother and father failed to provide her with adequate food, clothing, shelter, and medical treatment. The petition further alleged mother was unable to provide D.P. with regular care due to her mental health and substance abuse problems. Mother admitted she smoked marijuana and suffered from anxiety. At the time the petition was filed, D.P. had already been detained and placed in a licensed foster home.
On March 16, 2022, the juvenile court held a continued detention hearing and ordered D.P. detained, gave mother and father supervised visits, and set a combined jurisdiction and disposition hearing.
B. Jurisdiction and Disposition
The jurisdiction report showed father had pled no contest to two charges of arson of an inhabited structure (Pen. Code, § 451, subd. (b)) in 1992 and pled guilty to robbery (Pen. Code, § 212.5, subd. (c)) in 2000.
On May 4, 2022, the juvenile court held a combined jurisdiction and disposition hearing. The court found the allegations in the petition true and continued the disposition hearing.
The disposition report stated the department would not be recommending reunification services for father as there was clear and convincing evidence D.P. came within section 361.5, subdivision (b)(12), due to father's convictions. The report stated that "reunification services need not be provided to a parent or guardian when the court finds, by clear and convincing evidence that the parent has been convicted of a violent felony. The father has an apparent history of violent behavior and has spent several years in prison due to these past convictions." The department did not feel it was appropriate to offer father reunification services due to his past violent convictions.
In assessing the risk of detriment to D.P. if father was not provided with reunification services, the department noted it considered her age and the degree of the parent-child bond. Father had not enrolled in any case plan components, nor submitted to drug testing. Father reported he had used methamphetamine approximately eight months prior and had a history of using illegal substances. The department believed that if father was offered services, it was likely there would be little or no compliance, which would delay and deprive D.P. of a permanent home.
The department went on to note that section 361.5, subdivision (c), enables a parent to obtain reunification services notwithstanding a violent felony conviction if the parent demonstrates that reunification is in the child's best interest. A best interest finding required a likelihood that reunification services would succeed. The department concluded that it did not appear D.P. would suffer detriment if father was not offered services. Father had participated in some visits, but due to D.P.'s young age, it did not appear she would suffer detriment from lack of contact with him.
On May 18, 2022, the juvenile court held a continued disposition hearing. Father objected to the bypass recommendation. Father's counsel argued mother was being awarded reunification services, and because they were in a relationship, it would hinder D.P. going home to the parents. Additionally, counsel argued father's latest conviction occurred over 20 years ago and he had not engaged in violent activity since then. He requested reunification services be awarded to father. In ruling, the juvenile court stated, "At this time, the court will note that the father's conviction is old; however, the court has not been presented with any evidence that it would be in the best interest [of D.P.], that reunification services would succeed. So, at this time, the court will follow the recommendations of the social worker." The court adjudged D.P. a dependent of the court and bypassed father for reunification services.
On May 23, 2022, father filed a notice of appeal.
DISCUSSION
" '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. This furthers the goal of preservation of family, whenever possible.'" (In re Allison J. (2010) 190 Cal.App.4th 1106, 1112 (Allison J.).) "Section 361.5, subdivision (b) sets forth certain exceptions- also called reunification bypass provisions-to this 'general mandate of providing reunification services[.]'" (Ibid.) "Section 361.5, subdivision (b) 'reflects the Legislature's desire to provide services to parents only where those services will facilitate the return of children to parental custody.'" (Ibid.) "When the court determines a bypass provision applies, the general rule favoring reunification is replaced with a legislative presumption that reunification services would be' "an unwise use of governmental resources." '" (Ibid.)
One such bypass provision is section 361.5, subdivision (b)(12). "Section 361.5[, subdivision] (b)(12) allows the court to bypass reunification services where the parent or guardian has been convicted of a 'violent felony' within the meaning of Penal Code section 667.5, subdivision (c)." (Allison J., supra, 190 Cal.App.4th at p. 1112; § 361.5, subd. (b)(12).) "If, as occurred here, a bypass provision is found to apply, a juvenile court 'shall not' order reunification unless the court makes certain countervailing factual findings. (§ 361.5, subd. (c)(2).) The countervailing factual finding necessary to support reunification services here would be a finding 'by clear and convincing evidence ... that reunification is in the best interest of the child.'" (In re Christopher L. (2020) 56 Cal.App.5th 1172, 1189.)
"Section 361.5, subdivision (c) enables a parent to obtain reunification services notwithstanding section 361.5[, subdivision ](b)(12) where the parent demonstrates reunification is in the child's best interest by offering evidence of, among other things, his or her current ability to parent. To determine whether reunification is in the child's best interest, the court considers the parent's current efforts, fitness, and history; the seriousness of the problem that led to the dependency; the strength of the parent-child and caretaker-child bonds; and the child's need for stability and continuity. [Citation.] A best interest finding requires a likelihood reunification services will succeed; in other words, 'some "reasonable basis to conclude" that reunification is possible....'" (Allison J., supra, 190 Cal.App.4th, at p. 1116.)
"We review an order denying reunification services under subdivision (b) of section 361.5 for substantial evidence. [Citation.] Under such circumstances, we do not make credibility determinations or reweigh the evidence. [Citation.] Rather, we 'review the entire record in the light most favorable to the trial court's findings to determine if there is substantial evidence in the record to support those findings.' [Citation.] In doing so, we are mindful of the higher standard of proof required in the court below when reunification bypass is ordered." (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1121-1122.) However, the juvenile court's best interest finding is reviewed for abuse of discretion. (In re William B. (2008) 163 Cal.App.4th 1220, 1229, superseded by statute on other grounds.)
In the present case, the department's reports showed father had convictions for arson of an inhabited structure (Pen. Code, § 451, subd. (b)) and second degree robbery (Pen. Code, § 212.5, subd. (c)). "Any robbery" and "[a]rson, in violation of subdivision ... (b) of [s]ection 451" both constitute violent felonies within the meaning of Penal Code section 667.5. (Pen. Code, § 667.5, subd. (c)(9)-(10).) Accordingly, there was substantial evidence to deny father reunification services under section 361.5, subdivision (b)(12).
However, as noted, "[s]ection 361.5, subdivision (c) enables a parent to obtain reunification services notwithstanding section 361.5[, subdivision ](b)(12) where the parent demonstrates reunification is in the child's best interest by offering evidence of, among other things, his or her current ability to parent." (Allison J., supra, 190 Cal.App.4th at p. 1116.) Father failed to demonstrate how providing him with reunification services was in D.P.'s best interest. Father primarily focused his best interest arguments, both at the disposition hearing and in his opening brief, on the fact that his convictions were stale. Indeed, the juvenile court noted, "father's conviction is old; however, the court has not been presented with any evidence that it would in the best interest [of D.P.], that reunification services would succeed." We agree with the juvenile court. Father argues, "[t]o the contrary, the court was presented with more than twenty years of no evidence whatsoever [father] committed any criminal offense, felony or otherwise." However, that is not the standard by which to determine whether it would be in D.P.'s best interest for father to receive reunification services.
As discussed above, "[t]o determine whether reunification is in the child's best interest, the court considers the parent's current efforts, fitness, and history; the seriousness of the problem that led to the dependency; the strength of the parent-child and caretaker-child bonds; and the child's need for stability and continuity." (Allison J., supra, 190 Cal.App.4th at p. 1116.) Additionally, "[a] best interest finding requires a likelihood reunification services will succeed ...." (Ibid.) Once a bypass provision applies, it is the parent's burden to prove by clear and convincing evidence that reunification services would be in the child's best interest. (§ 361.5, subd. (c).) Again, father presented no such evidence.
The department reported it was unlikely reunification services would be successful because father had not enrolled in his case plan components and had not submitted to drug testing. Father had a history of drug use and had last used methamphetamine eight months ago. The extent of father's participation in services appeared to be limited only to attending some visits. D.P. was young and, according to the department, it did not appear she would suffer detriment from lack of contact with father.
Moreover, we are not persuaded by father's suggestion that there must be a nexus between his convictions and his ability to parent in order for the juvenile court to bypass reunification services under section 361.5, subdivision (c)(12). In Allison J., supra, 190 Cal.App.4th at p. 1115, the court addressed this issue and held that there need not be a nexus between a parent's convictions and their current ability to parent. Rather, a parent's current ability to parent is appropriately considered under the child's best interest analysis. To bypass a parent for reunification services under section 361.5, subdivision (b)(12), the court need only find by clear and convincing evidence that a parent was convicted of a violent felony within the meaning of Penal Code section 667.5, subdivision (c).
Accordingly, substantial evidence supports the juvenile court's order bypassing father for reunification of services, and the court's failure to find that providing father with reunification services would be in D.P.'s best interest was not an abuse of discretion.
DISPOSITION
The juvenile court's dispositional order bypassing father for reunification services is affirmed.
[*] Before Smith, Acting P. J., Meehan, J. and Snauffer, J.