Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for extraordinary writ. D. Zeke Zeidler, Judge. Super. Ct. No. CK46218.
Law Offices of Alex Iglesias, Steven D. Shenfeld and Donna Bernstein for Petitioner.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kirstin J. Andreasen, Associate County Counsel, for Real Party in Interest.
MALLANO, Acting P. J.
Louis F. (Father) challenges the sufficiency of the evidence supporting those aspects of the juvenile court’s July 11, 2007 order (1) asserting juvenile court jurisdiction over his son E.F. (born in Dec. 2006) under Welfare and Institutions Code section 300, subdivision (b) (failure to protect) based on Father’s criminal history (count b-4), and (2) denying Father reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(12) based on his conviction for extortion. We conclude that substantial evidence supports the juvenile court’s jurisdictional order, but substantial evidence does not support the denial of reunification services, so we grant the petition as to that part of the order denying Father reunification services.
Unspecified statutory references are to the Welfare and Institutions Code.
BACKGROUND
When E.F. was born, both he and his mother (Anita R., Mother) tested positive for cocaine. E.F. was detained and placed in foster care, where he remains. Mother did not participate in these proceedings, did not visit E.F., and was denied family reunification services based on the termination of her parental rights in 2004 to E.F.’s half sibling.
The day after E.F. was born, a Department of Children and Family Services (DCFS) social worker spoke to Father, who was “evasive about his own drug use and his ability to care for the child. The father indicated that he only smokes marijuana . . . .” After Father told the social worker that his cousin could care for E.F., the social worker contacted the cousin, who declined to care for E.F. and said that she felt the parents were “a bad influence, drug users and she does not want to be associated with them.” In December 2006, DCFS filed a petition alleging that E.F. was a dependent of the juvenile court under section 300, subdivision (b) based on Mother’s history of drug abuse and current drug abuse (counts b-1 and b-2) and on Father’s history of substance abuse and current use of marijuana (count b-3).
In February 2007, Father admitted to a DCFS social worker that he still used marijuana occasionally. He also claimed that he could not recall having a history of drug use, but he was arrested for driving under the influence about 20 years previously.
In January 2007, E.F. was hospitalized after he was diagnosed with congenital heart disease, failure to thrive, and hypertonia (muscle stiffness). Upon his release from the hospital, he was to be placed in an “F.rate[d] foster home” that could accommodate medically fragile children.
At a juvenile court hearing in February 2007, Father informed the court that he had lived with Mother when she was pregnant and he signed a declaration of paternity when E.F. was born. But Father requested a genetic paternity test because he was not certain he was the father, and he had an “‘off and on relationship’” with Mother. At a court hearing on February 14, 2007, Father requested visits with E.F. as he had not seen him since December 18, 2006. The court ordered that Father was to have monitored visits twice a week only after a positive paternity test was received. Meanwhile, DCFS was to provide Father with referrals for random drug testing and for medical training to care for E.F. In May 2007, DCFS received the paternity test results, indicating by a 99.98 percent probability that Louis F. was E.F.’s biological father. Father had two monitored visits with E.F. on June 22 and 26, 2007. Two visits were cancelled due to E.F.’s illness, and Father cancelled a visit scheduled for July 5, 2007. By July 11, 2007, Father had visited with E.F. three times, once at birth and twice in June 2007.
The jurisdiction and disposition hearing was set for April 12, 2007, but was continued to May 22, 2007, and then to July 11, 2007. After DCFS received records of Father’s criminal convictions, the original petition was dismissed and DCFS filed a first amended petition on April 12, 2007, adding count b-4 to the allegations of jurisdiction under section 300, subdivision (b).
Count b-4 alleged that Father “has an extensive criminal history, which includes misdemeanor and felony criminal arrests and convictions. Furthermore, father has felony convictions including but not limited to: Extortion, Rape, and Murder. The child’s father’s criminal history endangers the child’s physical and emotional health and safety and places the child at risk of physical and emotional harm and damage.”
In the first amended petition, counts b-1 and b-2 contained allegations against Mother. Counts b-3 and b-4 contained allegations against Father.
In its April 12, 2007 interim review report, DCFS recommended against any reunification services for Father based on his criminal convictions. According to DCFS, in 1977, when Father was 17, a first degree murder delinquency petition was sustained against him and he was committed to the California Youth Authority. A report on Father from the California Law Enforcement Tracking System (CLETS) attached to the DCFS report indicated that the murder and rape offenses occurred when Father was a juvenile. Father was 26 years old at the time of his 1985 felony extortion conviction under Penal Code section 519, subdivision 1.
Penal Code section 518 provides: “Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.”
At a juvenile court hearing on May 22, 2007, the court noted the positive paternity test and found Father to be E.F.’s biological father. After the court received Father’s signed “Statement Regarding Parentage” (form JV-505), requesting a judgment of paternity, the court stated that “[t]he Father is declared to be the father per the J.V. 505 form, which seems to be basically a Kelsey S. father.”
Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.). Kelsey S. held that “an unwed father who has no statutory right to block a third party adoption by withholding consent may nevertheless have a constitutional right to do so under the due process and equal protection clauses of the Fourteenth Amendment and thereby to preserve his opportunity to develop a parental relationship with his child.” (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1052.) “A father’s status is significant in dependency cases because it determines the extent to which the father may participate in the proceedings and the rights to which he is entitled. . . . Presumed father status entitles the father to appointed counsel, custody (absent a finding of detriment), and a reunification plan. (Welf. & Inst. Code, §§ 317, subd. (a), 361.2, subd. (a), 361.5, subd. (a).)” (In re T.R. (2005) 132 Cal.App.4th 1202, 1209.) Thus, a “biological father may be accorded parental rights and become a Kelsey S. father when his attempt to achieve presumed parent status under [Family Code] section 7611, subdivision (d) is thwarted by a third party and he made ‘a full commitment to his parental responsibilities . . . .’” (In re Elijah V. (2005) 127 Cal.App.4th 576, 583.)
On June 4, 2007, Father enrolled in a program offering parenting, alcohol and drug counseling, as well as random drug testing. On June 13, he tested negative for drugs, but Father failed to attend a drug test on July 9 and his attendance in the other programs was poor. According to DCFS’s July 11, 2007 interim review report, a paternal aunt, who attended a monitored visit between Father and E.F., declined to care for E.F. because she was not equipped to deal with his “constant need of medical attention” and “‘round the clock basic care.’” The paternal aunt also informed DCFS that it was unlikely that any paternal relative would be willing to care for E.F. because of his special needs and because the family members were estranged.
At the jurisdiction and disposition hearing on July 11, 2007, Father’s attorney moved to dismiss counts b-3 and b-4 of the first amended petition. With respect to count b-3, his attorney argued that notwithstanding Father’s admission that “periodically he has used marijuana,” such use did not indicate that there was any risk of harm to E.F. Father’s attorney moved to dismiss count b-4 for insufficiency of the evidence because Father’s juvenile adjudications could not be deemed a criminal conviction under section 203 and could not be used for any purpose. Father also maintained that there was insufficient evidence that his criminal history posed a risk of serious physical harm to E.F.
Count b-3 alleged that Father “has [a] history of substance abuse and is a current user of illicit drugs including marijuana, which renders the child’s father incapable of providing regular care and supervision for the child. Further, the child’s father’s abuse of illicit drugs endangers the child’s physical and emotional health and safety and places the child at risk of physical and emotional harm and damage.”
Section 203 provides: “An order adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime for any purpose, nor shall a proceeding in the juvenile court be deemed a criminal proceeding.”
After argument of counsel, the juvenile court amended count b-3 to conform to proof to add allegations of alcohol abuse based on Father’s convictions for driving under the influence of alcohol and found the amended count to be true. With respect to count b-4, the court amended it by adding allegations regarding Father’s juvenile delinquency history “everywhere it says criminal, [it should state] he had a criminal and or juvenile delinquency [conviction or adjudication].” As so amended, the court found count b-4 to be true and sustained all four counts of the first amended petition.
The juvenile court did not complete the interlineation of count b-4 of the first amended petition to conform in all respects to the amendments it announced at the hearing on July 11, 2007. As intended by the juvenile court, and as found to be true, count b-4 should read: “The child [E.F.’s] father Louis [F.] has an extensive criminal and/or juvenile delinquency history, which includes misdemeanor and felony criminal and/or juvenile delinquency arrests and convictions and adjudications. Furthermore, father has felony convictions [or juvenile adjudications] including but not limited to: Extortion, Rape, and Murder. The child’s father’s history endangers the child’s physical and emotional health and safety and places the child at risk of physical and emotional harm and damage.”
The juvenile court then removed E.F. from parental custody and denied reunification services to the parents. With respect to Father, the court denied reunification services under section 361.5, subdivision (b)(12), based on Father’s conviction for extortion.
Section 361.5, subdivision (b) provides: “Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] (12) That the parent or guardian of the child has been convicted of a violent felony, as defined in subdivision (c) of Section 667.5 of the Penal Code.”
The juvenile court agreed with Father’s argument that his juvenile adjudications could not be used to deny reunification services under section 361.5, subdivision (b)(12). The court also rejected DCFS’s arguments that Father was only a biological father, stating that Father “has a little more status of a biological, as indicated since he was declared a father per the court paternity form, which is in effect a Kelsey S. father.” The court also stated that it could not find it was in E.F.’s best interest for Father to be granted reunification services because E.F. did not have a relationship with Father, Father did not assert paternity of E.F. until he got a positive genetic test, and Father “has not shown a commitment from the beginning and . . . has a history of . . . recidivism. A severe history of recidivism.” A permanent plan hearing was set for November 5, 2007.
We construe the record to indicate that the juvenile court found that Father was a presumed father. DCFS filed a motion to take additional evidence, seeking to bring before us Father’s voluntary declaration of paternity which he signed at the time of E.F.’s birth, and which would qualify him for presumed father status. Because the juvenile court accorded Father presumed father status, we deny DCFS’s motion.
In Father’s petition for an extraordinary writ, he challenges the sufficiency of the evidence supporting two aspects of the juvenile court’s July 11, 2007 order: (1) the sustaining of count b-4 of the first amended petition, and (2) the denial of reunification services under section 361.5, subdivision (b)(12).
DISCUSSION
A. Jurisdiction
Father does not challenge the sufficiency of the evidence supporting counts b-1, b-2, and b-3, but only the evidence supporting count b-4. We address the issue of whether the evidence is sufficient to support jurisdiction under count b-4, even though a single count is sufficient to uphold the juvenile court’s order (e.g., In re Dirk S. (1993) 14 Cal.App.4th 1037, 1045; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875–876), and a minor is a dependent if the actions of either parent bring him within one of the statutory definitions of a dependent. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16.)
“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 re Rocco M. (1991) 1 Cal.App.4th 814, 823 (Rocco M.).) “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.]” (Rocco M., at p. 824.)
“Cases finding a substantial physical danger tend to fall into two factual patterns. One group involves an identified, specific hazard in the child’s environment — typically an adult with a proven record of abusiveness. [Citations.] The second group involves children of such tender years that the absence of adequate supervision and care poses an inherent risk to their physical health and safety. (E.g., In re Corey A. (1991) 227 Cal.App.3d 339 . . . [one-year-old child with congenital defects and possible fetal alcohol syndrome]; In re Stephen W. (1990) 221 Cal.App.3d 629 . . . [infant]; In re Jeffrey P. (1990) 218 Cal.App.3d 1548 . . . [under three years old]; see also, In re Rodger H. (1991) 228 Cal.App.3d 1174 . . . [severely retarded infant]; In re Robert P. [(1976)] 61 Cal.App.3d 310 [two-year-old].)” (Rocco M., supra, 1 Cal.App.4th at p. 824 [11-year-old subject to risk of harm if placed in home allowing access to drugs].)
We review jurisdictional orders for substantial evidence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) Under that standard, we view the record as a whole in the light most favorable to the juvenile court’s order and we indulge every inference and resolve all conflicts in favor of the court's decision. (Ibid.)
Father argues that the “pleading of a criminal history alone does not establish causation so as to demonstrate ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” But our record contains more than a conclusory statement that Father has a criminal history — it details an extensive criminal history with information as to specific convictions and sentences. The record shows that Father admitted to current marijuana use, that he had numerous recent convictions for driving while intoxicated and a 2005 felony conviction for possession of narcotics. The juvenile court reasonably could have concluded that Father had a substance abuse problem. Given E.F.’s young age and fragile medical condition, substantial evidence supports the juvenile court’s finding that Father’s criminal history and conduct exposed E.F. to a substantial risk of serious physical harm.
B. Denial of Reunification Services
We agree with Father that the court erred in denying him reunification services under section 361.5, subdivision (b)(12) because there was no evidence that Father’s extortion offense was gang related, a requirement under the statutory scheme.
DCFS concedes that Father’s extortion charge “is not a violent felony as defined by Penal Code section 667.5,” and that unless “[Father] has another violent felony conviction, section 361.5, subdivision (b)(12) does not apply.” DCFS nevertheless argues that section 203 (see fn. 6, ante) should not apply and that the term “violent felony” in section 361.5, subdivision (b)(12) should include those juvenile adjudications which would constitute violent felonies if committed by an adult. DCFS also maintains that any error in denying Father reunification services was harmless because he could not have reunified with E.F. within the allowed six-month statutory time period.
In addressing Father’s contention, we are called upon to construe three statutes: section 361.5, subdivision (b)(12), and Penal Code sections 667.5, subdivision (c)(19), and 186.22. (See fn. 7, ante.) “We review issues of statutory construction de novo.” (In re Y.R. (2007) 152 Cal.App.4th 99, 109.) “‘Pursuant to established principles, our first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. . . . .’” (Ibid.) The foregoing principles also govern interpretation of a voter initiative. (People v. Briceno (2004) 34 Cal.4th 451, 459 (Briceno).)
The denial of reunification services under section 361.5, subdivision (b)(12) requires that the parent “has been convicted of a violent felony as defined in subdivision (c) of Section 667.5 of the Penal Code.” Penal Code section 667.5, subdivision (c)(19), defines “violent felony” to include “Extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22 of the Penal Code.”
In subdivision (a), Penal Code section 186.22 provides for the substantive offense of active participation in a criminal street gang; there are no other substantive offenses contained in Penal Code section 186.22. (Briceno, supra, 34 Cal.4th at p. 460, fn. 7.) The remaining provisions of Penal Code section 186.22 contain definitions of terms, directions to the trial court upon sentencing, or provide for either a sentence enhancement (in subdivision (b)(1)) or for an alternative penalty provision for gang-related offenses. (Briceno, at p. 460, fn. 7.)
Briceno addressed the issue of whether a defendant’s prior conviction for weapons offenses, the sentence which had been enhanced under Penal Code section 186.22(b)(1), constituted a “serious felony” under Penal Code section 1192.7, subdivision (c)(28), which “makes ‘any felony offense, which would also constitute a felony violation of Section 186.22,’ a serious felony.” (Briceno, supra, 34 Cal.4th at p. 458.) The court noted that, at first blush, the phrase “‘felony violation of Section 186.22’” in Penal Code section 1192.7, subdivision (c)(28) appeared susceptible of two interpretations: (1) that it referred only to the substantive felony offenses contained in Penal Code section 186.22, subdivision (a), or (2) that it included any felony offense with a gang sentence enhancement under Penal Code section 186.22, subdivision (b)(1). (Briceno, at pp. 459–460.)
After examining other provisions enacted by Proposition 21, the initiative by which the electorate enacted subdivision (c)(28) of Penal Code section 1192.7, the Briceno court concluded that Penal Code “section 1192.7(c)(28) broadly covers ‘any felony offense [that] violat[es] Section 186.22.’ (Italics added.) By referring to section 186.22 generally, section 1192.7(c)(28) demonstrates the voters’ intent also to encompass subdivision (b) of section 186.22, which defines gang-enhanced felonies.” (Briceno, supra, 34 Cal.4th at p. 462.)
“By Proposition 21, the electorate, in pertinent part, added to section 667.5(c)’s list the following paragraphs: ‘(19) Extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22 of the Penal Code. [¶] (20) Threats to victims or witnesses, as defined in Section 136.1, which would constitute a felony violation of Section 186.22 of the Penal Code.’ (§ 667.5(c)(19), (20).)” (People v. Florez (2005) 132 Cal.App.4th 314, 321, fn. 15.)
Briceno argued that the foregoing definition of “serious felony” rendered superfluous Penal Code section 667.5, subdivision (c)(19), dealing with extortion. In rejecting the defendant’s argument and finding no overlap in the provisions, the court noted in dictum that “extortion (§ 518) is a felony offense that becomes a violent felony when it is committed for the benefit of a criminal street gang under the section 186.22(b)(1) gang enhancement. (§ 667.5, subd. (c)(19).)” (Briceno, supra, 34 Cal.4th at p. 463.)
The Briceno dictum supports our conclusion that the crime of extortion constitutes a violent felony within the meaning of Penal Code section 667.5, subdivision (c)(19) either when it would constitute a felony violation of the substantive offense set out in Penal Code section 186.22, subdivision (a), or when it would qualify for a gang sentence enhancement under Penal Code section 186.22, subdivision (b)(1).
The information in our record about Father’s extortion conviction makes no reference to Penal Code section 186.22 or gang activity and, thus, does not prove a violent felony under Penal Code section 667.5, subdivision (c)(19). Accordingly, there was insufficient evidence to deny Father reunification services under section 361.5, subdivision (b)(12).
DCFS attempts to persuade us to consider Father’s juvenile adjudications for murder and robbery as violent felonies under section 361.5, subdivision (b)(12). In other words, DCFS urges us not to give effect to section 203. We reject DCFS’s argument because it is not supported by pertinent authority or the statutory language and is based primarily on policy arguments best addressed to the Legislature. Nothing in section 361.5, subdivision (b)(12) evidences an intent to include juvenile adjudications within the meaning of the phrase “convicted of a violent felony,” and had such been the intent, it would have been reflected in the language of the statute. (See Vikco Ins. Services, Inc. v. Ohio Indemnity Co. (1999) 70 Cal.App.4th 55, 62 [courts are not at liberty to impute an intention to the Legislature when nothing in the language of the statute implies such intention]; Colgan v. Leatherman Tool Group, Inc. (2006) 135 Cal.App.4th 663, 684 [we may not, under the guise of construction, rewrite the law or give the words an effect different from the plain and direct import of the terms used].)
We also disagree with DCFS’s argument that any error in denying Father reunification services is harmless because its argument is based on the speculative assertion that Father would not be able to reunify with E.F. within the six-month period of time allowed for reunification with a child under age three.
“We typically apply a harmless-error analysis when a statutory mandate is disobeyed, except in a narrow category of circumstances when we deem the error reversible per se.” (In re Jesusa V. (2004) 32 Cal.4th 588, 624 [incarcerated biological father not prejudiced by denial of right to personally attend disposition hearing]; contra, In re Catherine S. (1991) 230 Cal.App.3d 1253, 1258 [order denying father reunification services based on his status as pedophile was unsupported by substantial evidence and “necessarily reversible” without harmless error analysis].)
Assuming a harmless error analysis is appropriate here, we conclude that the error in denying Father reunification services was not harmless. Evidence in the record supports the inference that it is reasonably probable that the provision of reunification services to Father may enable him to maintain a significant parental relationship with E.F. At his first juvenile court appearance in February 2007, Father requested visits with E.F. But because Father also requested a paternity test, the court ordered that his monitored visitation was not to begin until after a positive paternity test was received. After a positive test result was received in May 2007, Father had two visits with E.F. in June 2007. Two visits were cancelled due to E.F.’s illness, and Father cancelled one visit in July 2007. Father also enrolled in a parenting and drug counseling program in June 2007. Although Father’s attendance in the program was poor, he tested negative for drugs. Because of Father’s commitment to visitation with E.F. and his voluntary enrollment in treatment programs, there is a reasonable basis to conclude that reunification services will enable Father to maintain a parental relationship with E.F.
Courts should not be too eager to label the provision of reunification services “‘fruitless.’” (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464 (Renee J.) [juvenile court’s error in terminating reunification services under section 361.5, former subdivision (b)(10) without determining whether parent made reasonable efforts to treat problems was not harmless].) As stated in a related context, “[i]f the evidence suggests that despite a parent’s substantial history of misconduct with prior children, there is a reasonable basis to conclude that the relationship with the current child could be saved, the courts should always attempt to do so. Courts must keep in mind that ‘[f]amily preservation, with the attendant reunification plan and reunification services, is the first priority when child dependency proceedings are commenced.’ [Citation.] The failure of a parent to reunify with a prior child should never cause the court to reflexively deny that parent a meaningful chance to do so in a later case. To the contrary, the primary focus of the trial court must be to save troubled families, not merely to expedite the creation of what it might view as better ones.” (Renee J., at p. 1464.)
The evidence here suggests that Father demonstrated a sufficient commitment to E.F. that it is reasonably probable that the provision of reunification services would enable him to maintain a parental relationship with his son. As in Renee J., because there is a reasonable basis to conclude that the parental relationship could be saved, the error in denying reunification services was not harmless.
DISPOSITION
Let a peremptory writ of mandate issue requiring respondent court to vacate those parts of its July 11, 2007 order denying petitioner Louis F. reunification services and setting a permanent plan hearing under Welfare and Institutions Code section 366.26. In all other respects, the petition is denied. Real party in interest’s motion to take additional evidence is denied.
We concur: VOGEL, J., JACKSON, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
On July 11, 2007, the juvenile court also set a permanent plan hearing for November 5, 2007.
Penal Code section 519 provides in pertinent part: “Fear, such as will constitute extortion, may be induced by a threat, either: [¶] 1. To do an unlawful injury to the person or property of the individual threatened or of a third person . . . .”
The CLETS report indicated that Father had the following additional convictions: (1) 1982, misdemeanor conviction for carrying a loaded firearm in a public place; (2) 1983, misdemeanor conviction for petty theft; (3) 1984, misdemeanor conviction for possession of a controlled substance; (4) 1987, misdemeanor conviction for use or being under the influence of a controlled substance; (5) 1995, felony conviction for burglary; (6) 2003, misdemeanor conviction for driving under the influence of alcohol or drugs; (7) 2004, misdemeanor conviction for driving under the influence of alcohol; (8) 2005, felony conviction for possession of narcotics; (9) 2006, misdemeanor conviction for false personation of another.
Penal Code section 667.5, subdivision (c) provides in pertinent part that a “‘violent felony’ shall mean any of the following: [¶] . . . [¶] (19) Extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22 of the Penal Code.”
Penal Code section 186.22 provides in pertinent part: “(a) Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years.”