Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Harry A. Jacobs, Commissioner, Super. Ct. No. JV27857
No appearance for Respondent.
L.H., in pro per., for Petitioner.
James Fincher, County Counsel and James B. Tarhalla, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Vartabedian, A.P.J., Cornell, J., and Kane, J.
Petitioner in propria persona seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to his daughter M. We will deny the petition.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
The incident giving rise to dependency proceedings occurred in early July 2008. M., just two weeks shy of her third birthday, was with her mother A. at a public swimming pool. At the time, A. and M. were living with A.’s boyfriend, his mother, Mrs. F., and his sisters. A., intent on teaching M. to swim, tossed M. into the pool and encouraged M. to paddle toward her. Instead, M. went underwater. A. continued to throw M. into the water. Witnesses observed M. frantically grabbing at the sides of the pool and vomiting water. A. was overheard to say, “This bitch is gonna learn how to swim if it kills her.” Mrs. F. intervened and A. was taken to the apartment for a nap. She napped but woke up shaking and vomiting and her eyes were rolling back in her head. A. waited several hours before taking M. to the hospital. By that time, M. was losing consciousness.
M. was admitted to the hospital and diagnosed with cerebral edema, water intoxication and altered mental state. A.’s abuse did not stop with M.’s admission to the hospital. A nurse saw her spank M. and put her roughly in the crib. A speech therapist reported hearing the sound of slapping in M.’s room on two separate occasions on the same day. Mrs. F.’s daughter stated A. beat M. with a belt and hit her in the face because she did not eat. A. also picked M. up by the hair causing bald spots.
The social services agency (agency) took M. into protective custody at the hospital and ultimately placed her in foster care. The department also filed a dependency petition on M.’s behalf, identifying petitioner as her alleged father. At the time, petitioner, who has an extensive criminal history, was on parole, having been released from prison in May 2008. A. told the social worker she and petitioner were not married and never lived together. She also stated petitioner was not present at M.’s birth and was not named as M.’s father on the birth certificate. Petitioner confirmed this information but stated genetic testing confirmed his biological paternity.
The juvenile court ordered M. detained pursuant to the petition and set a combined jurisdictional/dispositional hearing (combined hearing) for August 2008. In its report for the hearing, the agency recommended the court deny both parents reunification services. Its reasoning with respect to petitioner was that, as an alleged father, he was not entitled to services. However, if the court determined he were M.’s presumed father, the agency recommended the court deny him services pursuant to section 361.5, subdivision (b)(12) because he was convicted of robbery. In addition, the agency reported that petitioner was incarcerated M.’s entire life and had not provided any financial support. Further, he was aware A. was the victim of domestic violence and made no attempt to protect M.
The combined hearing was continued and conducted as a contested hearing in December 2008. Based on documents presented, the juvenile court elevated petitioner to presumed father status.
Petitioner testified about the circumstances which led to his robbery conviction. In 2002, he was the go-between in a jewelry purchase. However, the “buyers” robbed the jewelry owners at gunpoint. Petitioner testified he did not have a gun and did not know that the buyers intended to commit a robbery. Petitioner was charged with robbery and trial was set. However, the witnesses did not show up. Petitioner accepted a deal to plead guilty with time served.
Petitioner further testified he found out he was M.’s father while in prison on another charge. He wrote to her every week, sending letters and cards. He also sent her pictures and she visited him in prison. He lost contact with her approximately three weeks before he was released and had difficulty locating her once out of prison. He did not remember how he located M. but stated he visited her, brought her clothes and offered to provide money. He also went to the family support division to set up payments. He testified he began working approximately a month after his release as a care provider for his sister’s four children. He was participating in a weekly group for fathers, tested negative for drugs and had no parole violations. He stated he would do anything to reunify with M.
On cross-examination, petitioner admitted being convicted of misdemeanor burglary in 2001, resisting a police officer in 2002, felony robbery in 2003 for the 2002 robbery and car theft in 2005.
Following testimony, petitioner’s attorney argued the court should provide petitioner reunification services because he was a non-offending parent, established paternity independently of the dependency proceedings and tried to maintain contact with M. through letters and visits while incarcerated. In addition, he located M. after his release from custody, offered financial support, abstained from drug use, participated in counseling and attended all the court hearings. Petitioner’s attorney also argued notwithstanding petitioner’s robbery conviction the court had discretion to order reunification services and should consider that petitioner was not armed or a participant in the robbery.
At the conclusion of the hearing, the juvenile court exercised its dependency jurisdiction, ordered M. removed from the custody of both parents, denied both parents reunification services as recommended, and set a section 366.26 hearing. This petition ensued.
DISCUSSION
Petitioner argues he did not harm M. Therefore, the juvenile court erred in denying him reunification services. We disagree.
The operative statute, section 361.5, subdivision (b)(12) (subdivision (b)(12)), allows the juvenile court to deny reunification services to a parent convicted of a violent felony, as defined in Penal Code, 667.5, subdivision (c). A “violent felony” includes certain enumerated crimes including “[a]ny robbery.” (Pen. Code, § 667.5, subd. (c)(9).) Since it is undisputed petitioner was convicted of robbery, subdivision (b)(12) applies.
Further, where subdivision (b)(12) applies, the juvenile court is prohibited from ordering reunification services unless the court finds by clear and convincing evidence reunification would serve the child’s best interest. (§ 361.5, subd. (c).) There is no evidence on this record to support such a finding. M. suffered severe abuse and cruelty at the hands of her mother and she had no relationship with petitioner who absented himself from her life by virtue of his criminal behavior. Given the extreme abuse M. has suffered, her best interest lies in a stable, nurturing home. We find no error.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.