Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for extraordinary writ. James A. Edwards, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Super. Ct. No. J219818. Petition denied.
Meg Hogenson for Petitioner.
No appearance for Respondent.
Ruth E. Stringer, County Counsel, and Jacqueline Carey-Wilson, Deputy County Counsel, for Real Party in Interest.
OPINION
KING, J.
In this petition for writ relief, Ricardo C. (father) asks us to vacate the juvenile court’s orders finding the allegations of the petition true, denying him reunification services, and setting a selection and implementation hearing pursuant to Welfare and Institutions Code section 366.26 for his son. He asserts that there was insufficient evidence to support the court’s finding that: (1) he was unable to care for the minor because of his past substance abuse; (2) he could not arrange for the minor’s care in light of the fact that he had several relatives who could provide care during his incarceration; and (3) it would be detrimental to the minor to offer him reunification services. We disagree with all of these assertions and, accordingly, deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS
The minor who is the subject of this dependency proceeding was born in February 2008 at St Mary’s Medical Center in Apple Valley, and on the same day was voluntarily surrendered by his mother pursuant to the Safe Arms Act. The child was detained, neither parent’s identity being known at the time.
Health and Safety Code section 1255.7.
On March 18, 2008, the child was placed with a foster family, which was also a concurrent planning home because the foster parents had expressed an interest in adoption.
On April 3, father contacted the San Bernardino County Department of Children’s Services (department) and identified himself as possibly being the minor’s father. He told the social worker that he was incarcerated and expected to be released in February 2009. He indicated an interest in taking a paternity test and, if he proved to be the father, he would have liked placement with his family.
Tests confirmed that father is the biological father and, thereafter, he was appointed counsel. The trial court continued the jurisdictional hearing so father could be present.
An amended petition was filed charging father with failure to protect because of his history of drug abuse and also with failure to provide support based on the voluntary surrender and his unavailability due to his incarceration.
In July 2007, father was sentenced to prison for three years for receiving stolen property. According to the correctional facility, his estimated release date is January 5, 2010, and not between February and April 2009 as father testified. Father has an extensive criminal history, having suffered numerous convictions and multiple terms of imprisonment since 1995. Indeed, father has so many prior convictions, he himself has a difficult time remembering them all. Father, who was 32 at the time of the jurisdictional hearing in August, also admitted that he has abused drugs, principally marijuana and methamphetamine, since he was 15 years old. He has not been able to complete a drug treatment program because he would commit new crimes and be returned to prison. He claimed that he had stopped using drugs six months prior to his current incarceration, but conceded that his long-standing drug problems might affect his ability to raise the minor.
Father proposed that the minor be placed with his parents or a sister until his release. He stated that he contacted them regarding caring for the minor and they replied that they are willing, but the social worker testified that none of his relatives contacted her to request an assessment.
His parents live in five-bedroom home in New Mexico, but father testified that he has never been to this home.
The other potential relative placement is father’s sister who lives in a three-bedroom house in Hesperia with her son, another sister, a brother, his wife, and their daughter. Father had lived with this sister before his current incarceration, but he did not know whether she would allow him to stay with her if she were caring for the minor. The social worker had contacted this sister about placement, but an assessment had not been completed because the sister had not Live Scanned. The social worker did not know the reason for her failure to do so. An adult brother who was living with the sister had done a Live Scan, and it showed he had been convicted of petty theft, driving while intoxicated, and had a FBI fugitive conviction. This brother’s wife and another sister were Live Scanned and neither had any criminal convictions.
This sister was renting her home and the bank was foreclosing on the owner. The sister was not certain where she would be living and did not have another residence.
The juvenile court sustained the jurisdictional allegations. Moreover, it found that father was not a presumed father and denied his request for reunification services. According to the court, “the biological father . . . is incarcerated and serving a [prison] term that exceeds the length of time of reunification services. [¶] Due to the minor’s young age and length of incarceration, it would be detrimental to offer family reunification services to the father. It is in the best interest of the minor to consider termination of parental rights.”
DISCUSSION
Father contends that the department failed to carry its burden to prove the allegations of the petition were true. He specifically contends that it was not shown that he could not provide adequate care for the minor due to his substance abuse as alleged pursuant to section 300, subdivision (b). He bases this contention on his testimony that he ceased using drugs prior to the minor’s birth and his current incarceration. However, there was evidence that father’s substance abuse was long-standing. He had spent most of the last 10 years in prison and had never been able to complete a drug program because he would reoffend and be sent back to prison. In fact, he violated parole twice for being under the influence of a controlled substance. He himself admitted his drug problem would interfere with his ability to parent and that he would need help with his substance abuse upon his release. Thus, reviewing the evidence in the light most favorable to trial court’s order (In re Misako R. (1991) 2 Cal.App.4th 538, 545), we conclude that this finding was sufficiently established.
Next, father contends that he had made arrangements for the minor’s care during his incarceration so that the juvenile court’s contrary finding under section 300, subdivision (g), is not supported by the evidence. Again, we must disagree. Although father suggested two relative placements, no relative contacted the department to express a desire to care for the minor. The social worker did contact the sister in Hesperia, but it was not shown that this home would be a suitable placement. She had not bothered to do a Live Scan, although father points out she intended to do so. Moreover, another brother living in this home had criminal convictions so that the home could not be approved for placement in the absence of an exemption. The brother had not even applied for such an exemption. In addition, there was uncertainty whether this sister would remain in this home. In short, father merely made some suggestions; he was unable to make definite arrangements for the minor’s present or future care.
Father’s final contention is that the juvenile court erred in finding that it would be detrimental to the child to offer him reunification services. Because father was determined to be the biological father, not the presumed father, he has no right to custody or reunification. (In re Zacharia D. (1993) 6 Cal.4th 435, 451.) The juvenile court may provide services to a biological father if it determines that the provision of services will benefit the child. (Welf. & Inst. Code, § 361.5, subd. (a).) For a child younger than three years old, reunification services shall not exceed six months from the date the child enters foster care. The minor here entered foster care in February 2008, shortly after his birth, and even using father’s most optimistic projection, father will be in prison until at least February 2009—beyond the six-month time for reunification services. There would be little opportunity for contact and bonding during this time and, as the court noted, father will not be in a position to have the child placed in his care after his release. Instead, he will require a lengthy time to deal with his substance abuse problem, as well as address other issues that are presented by his background and experience. Under these circumstances, the juvenile court’s determination that the minor would not benefit from the provision of services is sound.
DISPOSITION
The petition is denied.
We concur: McKINSTER, Acting P. J., RICHLI, J.