Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Humboldt County Super. Ct. No. JV080091
Jenkins, J.
Petitioner Rachel B. seeks an extraordinary writ to overturn the juvenile court’s decision to terminate reunification services that were offered to her pursuant to Welfare and Institutions Code section 361.5, and to set a permanency planning hearing pursuant to Welfare and Institutions Code section 366.26. Petitioner also seeks a temporary stay pending our decision to grant or deny her petition for extraordinary writ. We deny both the petition and the request for a stay for the reasons set forth below.
Unless otherwise stated, all statutory citations herein are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Petitioner gave birth to minor L.M. (the minor) in April 2008. The following day, while petitioner was still admitted to the hospital, the minor was removed from her care.
On May 23, 2008, real party in interest, Humboldt County Department of Health and Human Services (the department) filed an amended petition pursuant to section 300, alleging that: (1) the minor had suffered or faced a substantial risk of suffering serious physical harm or injury due to petitioner’s developmental delays, which were rendering her unable to adequately care for the minor (§ 300, subd. (b)(1)); and (2) the minor’s half sibling, B.P., was removed from petitioner’s care in January 2006 for failure to thrive due again to petitioner’s developmental delays, which had resulted in her failure to feed B.P. (id., at subd. (j)(1)).
The amended petition further noted that petitioner “has developmental delays that prevent her from having a safe and stable home for the minor.” In addition, in January 2006, the minor’s half sibling was removed from petitioner’s care and, as of April 21, 2008, petitioner had failed to obtain a court-ordered assessment from the Redwood Coast Regional Center (RCRC) in connection with the half sibling’s removal. Thus, petitioner had failed to take steps to address her developmental delays, which placed the half sibling and later the minor at risk. Further, “[T]hese issues led to a termination of parental rights in a half-sibling’s case . . . .”
Following a contested jurisdictional hearing, the juvenile court continued the minor’s removal from petitioner’s care and his placement in foster care. In doing so, the juvenile court found there was a substantial danger to the minor’s physical health or that he was suffering severe emotional damage and there were no reasonable means by which his physical or emotional health could be protected without removing him from petitioner’s custody.
A contested dispositional hearing was held August 11, 2008. Petitioner failed to appear. Petitioner’s attorney advised the juvenile court that he had not had contact with petitioner for about three months and thus, while she had previously favored reunification with the minor, he had no evidence to present.
The department submitted on the dispositional report (the report), which, among other things, noted that, since visiting with the minor on May 16, 2008, petitioner had not had contact with the department or the minor, and “has apparently lost all interest in his welfare.” The report further noted that, while petitioner had an intake evaluation at RCRC on May 15, 2008, and appeared to understand she was developmentally disabled, she had failed to participate in psychological assessments and was no longer taking advantage of assistance from the maternal grandmother. Additionally, despite being given 62 opportunities to visit the minor, petitioner had availed herself of only 13 such visits as of the time of the hearing.
With respect to the allegation of sibling abuse, the report noted that petitioner’s first child, B.P., was adjudicated a dependant of the court after she brought him back to the hospital shortly after his birth in January 2006, complaining of her inability to feed him. Hospital officials noted that B.P. was significantly underweight, and he was subsequently diagnosed with failure to thrive based on petitioner’s developmental delays, which prevented her from feeding him. As part of her case plan with respect to B.P., petitioner was ordered to participate in an RCRC evaluation and a parent education program. Petitioner’s case was closed and reunification services were terminated, however, when it was found that she did not comply with those orders. Ultimately, petitioner’s parental rights to B.P. were terminated and he was adopted.
Following the dispositional hearing in this matter, the juvenile court denied reunification services to petitioner pursuant to section 361.5, subdivisions (b)(10) and (b)(11), and set a permanency planning hearing for December 8, 2008. In particular, the juvenile court found that a permanent plan of adoption, legal guardianship or long-term foster care had previously been ordered for B.P., the minor’s half sibling, because petitioner failed to reunify with B.P. after his removal; the minor currently detained was also removed from petitioner; and petitioner had not made a reasonable effort to treat the problems that led to the children’s removal. This petition for extraordinary writ followed.
DISCUSSION
Petitioner raises two arguments in support of her writ petition. First, she contends the juvenile court erred by not construing section 361.5, subdivisions (b)(10) and (b)(11) to require a showing by the department that the parent failed to make reasonable efforts to correct the “same problem” that led to removal in the case of the sibling. Second, she contends clear and convincing evidence did not support the juvenile court’s decision in this case to terminate reunification services and to set the matter for permanency planning.
“The court has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order in accord with this discretion. [Citations.] We cannot reverse the court’s determination in this regard absent a clear abuse of discretion. [Citation.]” (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)
“Section 361.5, subdivision (a) explicitly directs the juvenile court to order child welfare services for the minor and the minor’s parents whenever a minor is removed from a parent’s custody. This requirement implements the law’s strong preference for maintaining the family relationship if at all possible. (In re Rebecca H. (1991) 227 Cal.App.3d 825, 843 [278 Cal.Rptr. 185].) However, there are limited exceptions to this rule listed in subdivision (b). Although these exceptions are narrow in scope and subject to proof by the enhanced ‘clear and convincing’ standard, they demonstrate a legislative determination that in certain situations, attempts to facilitate reunification do not serve and protect the child’s interests.” (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474; see also In re Joshua M. (1998) 66 Cal.App.4th 458, 467.)
Here, the juvenile court relied upon the exceptions set forth in section 361.5, subdivisions (b)(10) and (b)(11), in issuing a dispositional order that, among other things, terminated reunification services. Those subdivisions provide as follows: “(b) 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: [¶¶] (10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian 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 or guardian. [¶] (11) That the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and 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 the parent.” (§ 361.5, subds. (b)(10), (b)(11).)
Having reviewed this statutory language, we thus first address petitioner’s argument that, properly construed, section 361.5, subdivisions (b)(10) and (b)(11), require a showing that the parent failed to correct the “same problem” that gave rise to removal in the case of the minor’s sibling or half sibling. According to petitioner, given her interpretation of the statute, the juvenile court’s decision to terminate reunification services was erroneous because the “problem” that led to termination in B.P.’s case – failure to thrive – is different from that which led to the minor’ removal in this case – failure to provide a safe and stable home. We disagree with petitioner’s reasoning.
As both the statutory language and the case law interpreting it make clear, the relevant inquiry when services are terminated pursuant to section 361.5, subdivisions (b)(10) and (b)(11), is whether petitioner “made a reasonable effort to treat the problems that led to removal of [her children] from [her custody].” (In re Baby Boy H., supra, 63 Cal.App.4th at p. 475.) This is consistent with the premise underlying subdivisions (b)(10) and (b)(11) – that “a parent who has failed in one course of reunification services, or who has suffered the drastic step of termination of parental rights, is unlikely to succeed with a new round of services. (See In re Baby Boy H., supra, 63 Cal.App.4th at p. 478.) The reasonableness of this premise is buttressed by the fact that subdivision (b)(10) does not have any effect unless the state had found it necessary to make the subject minor a dependent child too. Thus, built into the statute is not only one prior completed parental failure, but a new, additional parental failure to provide adequate care.” (Riverside County Dept. of Public Social Services v. Superior Court (1999) 71 Cal.App.4th 483, 488.)
Here, as the juvenile court noted, both the minor and his half sibling, B.P., were removed from petitioner’s custody based upon the same problem – petitioner’s failure to access reasonable services to address her developmental delays. Otherwise stated, in both cases, it was petitioner’s unwillingness to gain insight into her developmental delays by participating in the services offered to her that negatively affected her ability to adequately protect and care for the needs of the children. Given these facts, we conclude the juvenile court properly determined that the exceptions set forth in section 361.5, subdivisions (b)(10) and (b)(11) – both of which focus on the problems that led to the children’s removal – were applicable to this case.
We now must determine whether clear and convincing evidence supported the juvenile court’s decision to terminate reunification services and set the matter for permanency planning pursuant to the exceptions set forth in those subdivisions. We conclude it did.
First, it is undisputed that petitioner previously failed to reunify with the minor’s half sibling, B.S., and that her parental rights in that case were thereafter terminated. (§ 361.5. subds. (b)(10), (b)(11).) As such, the first prong of both subdivisions (b)(10) and (b)(11) was clearly met.
Further, as we previously stated, in the dependency proceedings involving both of petitioner’s children, she was offered reunification services and, as part of her case plan, was required to obtain an evaluation of her developmental status from RCRC and to complete a parenting class. Petitioner failed to comply with either of those requirements, prompting the juvenile court in both cases to terminate reunification services. (Ibid.) Indeed, to date, we have seen no evidence that petitioner has obtained the evaluation at RCRC or completed a parenting class. Finally, at the time of the dispositional hearing, she had stopped visiting the minor and had not made contact with the department or her attorney in several months, prompting the department to conclude she had lost interest in parenting the minor. This evidence, we conclude, is sufficient to meet the second prong of subdivisions (b)(10) and (b)(11) – to wit, that petitioner has not, in this case, “made a reasonable effort to treat the problems that led to removal” of the minor’s half sibling, B.P. (§ 361.5, subds. (b)(10), (b)(11).)
Accordingly, given petitioner’s developmental delays, which prevent her from properly caring for her children, and given her failure to access the services offered to her to address those delays, we conclude the juvenile court properly found clear and convincing evidence that further services were not warranted pursuant to section 361.5, subdivisions (b)(10) and (b)(11).
As our colleagues in the Fourth District, Division One, have explained: “Section 361.5 reflects the Legislature’s desire to provide services to parents only where those services will facilitate the return of children to parental custody. The exceptions in subdivision (b) to the general mandate of providing reunification services ‘demonstrate a legislative determination that in certain situations, attempts to facilitate reunification do not serve and protect the child’s interest.’ (In re Baby Boy H.[, supra,] 63 Cal.App.4th [at p. 474] . . . .) Certainly, it cannot serve a child’s best interest to unnecessarily prolong the lengthy dependency process when there is no chance of successful reunification because of circumstances that make it ‘fruitless to provide reunification services . . . .’ (In re Rebecca H., supra, 227 Cal.App.3d at p. 837.)” (In re Joshua M., supra, 66 Cal.App.4th at p. 470.)
Unfortunately, we conclude this is just such a case – where there is no chance of successful reunification because of circumstances that make it “fruitless to provide reunification services.” (In re Rebecca H., supra, 227 Cal.App.3d at p. 837.) As such, “in an era of limited resources it is not only reasonable but prudent as well to focus reunification efforts on [other] cases [more] likely to succeed [citation].” (In re Joshua M., supra, 66 Cal.App.4th at p. 471; see also Riverside County Dept. of Public Social Services v. Superior Court, supra, 71 Cal.App.4th at p. 488.) The petition for extraordinary writ must therefore be denied.
DISPOSITION
The petition for extraordinary writ and request for stay are denied.
We concur: McGuiness, P. J., Siggins, J.