Opinion
E082021
03-26-2024
In re S.H., et al., Persons Coming Under the Juvenile Court Law. v. J.I., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, Teresa K.B. Beecham, and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWJ1600728 Donal B. Donnelly, Judge. (Retired judge of the Imperial Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham, and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
RAPHAEL, J.
The mother of two dependent children challenges the juvenile court's order denying her reunification services under Welfare and Institutions Code, section 361.5, subdivision (b)(10), as well as some of its jurisdictional findings. The county welfare department concedes one of the jurisdictional findings lacks the support of substantial evidence. We accept that concession, but otherwise affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTS
There is a long history of domestic violence between defendant and appellant J.I. (mother) and A.H. (father), who is not party to this appeal. Their two children are S.H. (born November 2015) and M.H. (born March 2017). Mother also has two older children, not part of this case, who have a different father.
This is mother's third dependency case involving domestic violence between her and father. In the first, initiated by a section 300 petition filed in December 2016, plaintiff and respondent Riverside County Department of Public Social Services (the department) alleged mother and father physically fought while mother was pregnant with the youngest child. Mother's two older children were removed from her custody, placed with their father, and the juvenile court terminated the dependency as to them in February 2017. The two younger children (the youngest born during the case) were removed from father and placed with mother. The department was ordered to provide family maintenance services to mother and family reunification services to father. The juvenile court terminated the dependency as to the two younger children, with mother and father sharing joint custody, in November 2017.
The department filed a new dependency petition as to all four children in November 2021 based on "ongoing domestic violence," mother's mental health issues, and the parents' prior child welfare history. On separate occasions, both parents had been arrested for domestic violence. Most recently, mother had hit father with a cell phone, knocking out one of his teeth, and then began punching him in the face. Before that, mother had been taken into custody under section 5150 because of an apparent suicide attempt; when father told her he was leaving the relationship, she "broke a glass and began cutting her neck." The juvenile court removed the children from mother and left them in the care of each of their fathers. The older children's father was granted custody and the dependency was terminated as to them. Mother was offered reunification services as to the two younger children, but the services failed; after some participation, mother regressed, including a second section 5150 hold for another suspected suicide attempt. In January 2023, the juvenile court terminated mother's reunification services, granted father sole physical custody of the children, granted mother and father joint legal custody, ordered visitation for mother, and terminated the dependency.
The current case began in May 2023. The dependency petition alleged the two younger children came within subdivision (b)(1) (failure to protect), and included five jurisdictional allegations: (b-1) domestic violence by mother in the presence of the children; (b-2) domestic violence by father; (b-3) neglect of the children's educational needs by both parents; (b-4) both parents' neglect of the children's health and well-being "in that they have not been to the dentist in the last two years and have not seen a pediatrician since prior to starting kindergarten. Further, [the youngest child's] four front teeth are rotten"; and (b-5) the parents' prior child welfare history for allegations of domestic violence, and failure to benefit from services offered.
According to the detention report, mother and father had another physical fight. Father was arrested, and mother required stitches to close a laceration on her forehead. Mother told the social worker she had let father move back into the home "a year ago" because he and the children were homeless. The incident occurred after she confronted father about suspected drug use, and the argument turned physical after he refused to empty his pockets. She said father punched her and slammed her into a wall, causing her to hit her head. Mother "expressed regret in reuniting with the father as she knew better but she was desperate to be with the children."
The social worker visited father in jail, and he told a different story. Father had a black eye and a large bruise on the right side of his face, and the inside of his lip was also bruised, injuries that he said occurred during the altercation with mother. He "took his dentures out to show that the mother had knocked out all of his teeth during a prior domestic violence incident." He said he had moved back in with mother about two weeks earlier because he had emergency surgery and could not care for himself. According to father, "every time there was a domestic violence altercation between him and the mother, she was the aggressor." He denied punching mother during the most recent incident, saying he had only pushed mother away "trying to get [her] off him," and she fell and hit her head, causing her laceration. He was arrested because police did not believe him. He also described "multiple" occasions when "mother has held him hostage and trapped him in the home" by blocking their single lane driveway so he could not leave.
The secretary of the children's school told the social worker she was aware of ongoing domestic violence between mother and father. The secretary described a months' long pattern of father calling to ask the school to allow mother to pick up the children, then weeks later calling back and revoking that permission. Once, father said he had broken up with mother because she tried to stab him. The children had repeatedly had unexcused absences or tardiness, reportedly due to father's health issues.
When the social worker spoke to the children, both said they lived with mother, father, and one another. Both children said they had seen mother hit father, and both denied seeing father hit mother. The social worker observed that the youngest child's "four front teeth (top row) appeared to have completely rotted" (in fact, she would need 16 of her baby teeth removed because they were decayed beyond repair, requiring a series of oral surgeries). Mother told the social worker the children had not been to the dentist or pediatrician for years. According to her, "father cancelled the Medi-Cal that was under her name and reapplied under his name," and then "withheld their insurance information from her and did not follow-up with the appointments."
Mother was incorrect, as the children received some medical and dental care during the previous dependency in 2022. The children were not then in mother's care.
At the detention hearing on May 30, 2023, the children were detained from both parents. The department placed them with their maternal grandmother.
At the jurisdiction and disposition stage, the department recommended the court sustain the petition and bypass reunification services for mother under section 361.5, subdivision (b), based on the termination of her services during the previous dependency. With reluctance, it recommended father be offered services: "Regrettably, the father does not fit the established criteria to bypass reunification services."
The department found the children had "thrived since being in the care of their maternal grandmother," who had been "remarkable" in addressing their needs, "including their academic, emotional and physical well-being." Both children required "intensive dental treatments," with the younger one still "awaiting surgical extractions," but the maternal grandmother had been "diligent" in keeping their dental appointments and "apprising [the social worker] of their status."
Both children said they liked residing with grandmother, though they also "desire[d] contact with their parents." The children visited with both parents weekly, and "by all accounts" the visits were "productive with the parents reported as being wholly attentive." It was stipulated that, if called to testify, both children would say "they love both their mother and father and would like to live with both their mother and father." Both mother's counsel and minors' counsel asked that the court find it to be in the children's best interest to offer mother reunification services, notwithstanding the termination of her services in the prior dependency. Before the jurisdiction and disposition hearing, mother had been participating in parenting classes and individual counseling. Her therapist's opinion was that she had "made good progress in therapy and learned from her previous errors," and that she "can be trusted to take care of her children and to protect especially from their father and to follow the advice of the social worker of her case."
After a contested hearing in August 2023, the trial court sustained the allegations of the dependency petition and found the children came within section 300, subdivision (b)(1). It removed the children from the parents' physical custody, and ordered father to receive reunification services. It denied mother reunification services under section 361.5, subdivision (b)(10).
DISCUSSION
A. Jurisdictional findings.
Mother argues no substantial evidence supports the juvenile court's decision to sustain against her the b-3 and b-4 jurisdictional allegations about neglect of the children's educational needs and their health and well-being, particularly their dental care. She does not contest the other jurisdictional findings.
As mother acknowledges, the validity of one jurisdictional finding "may render moot the parent's attempt to challenge the others." (In re D.P. (2023) 14 Cal.5th 266, 284.) She urges us to exercise our discretion to consider her arguments on the merits nevertheless, asserting the challenged jurisdictional findings are relevant to whether it was in the children's best interests to bypass reunification services for mother. This is not quite right. It is the facts that matter in the analysis of the children's best interests, not whether those facts amount to an independent basis for exercise of dependency jurisdiction.
Nevertheless, the department concedes, and we agree, jurisdictional finding b-3 lacks the support of substantial evidence. Certainly, the children had too many unexcused absences. Even assuming those absences arose from culpable parental neglect, however, and "failing to go to school regularly is very detrimental" to children in many ways, it does not subject them "to physical injury or illness, serious or otherwise." (In re Janet T. (2001) 93 Cal.App.4th 377, 388-389.) As such, evidence of failure to ensure regular school attendance does not support a finding of dependency jurisdiction under section 300, subdivision (b)(1). (In re Janet T., supra, at p. 389; see section 300, subd. (b)(1) [requiring showing the child "has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of" enumerated parental failures or inabilities].) We will therefore exercise our discretion to reverse that finding on the merits.
The juvenile court's jurisdictional finding b-4, regarding neglect of the children's health and well-being, in some ways presents a closer and contested question. No doubt, the children's medical and dental needs were neglected. There is room to argue, however, about how much responsibility mother should bear for neglect since November 2021, when the children were taken out of her care during that prior dependency. We decline to expend judicial resources on deciding this disputed issue, which is mooted by the three unchallenged jurisdictional findings. B. Reunification services.
The juvenile court denied mother reunification services, finding she came within section 361.5, subdivision (b)(10), and there was not clear and convincing evidence reunification was in the children's best interest under section 361.5, subdivision (c)(2). Mother challenges both these findings. We are not persuaded.
"A juvenile court is generally required to order reunification services for a parent 'whenever a child is removed' from that parent's custody." (In re Jayden M. (2023) 93 Cal.App.5th 1261, 1271 (Jayden M.); see § 361.5, subd. (a).) "Our Legislature has, in certain statutorily enumerated situations, nevertheless granted juvenile courts discretion to decide whether reunification services are 'in the best interest of the child.'" (Jayden M., supra, at p. 1271; see § 361.5, subds. (b) & (c)(2).) "These provisions are known as the '"'bypass' provisions."'" (Jayden M., at p. 1271.)
"When read as a whole, section 361.5 erects a two-step, burden-shifting procedure for bypassing reunification services" under subdivision (b)(10). (Jayden M., supra, 93 Cal.App.5th at p. 1272.) First, the department must prove by clear and convincing evidence that subdivision (b)(10) applies; that is, it must prove "(1) the parent previously failed to reunify with a sibling [or half-sibling] and (2) the parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling [or half-sibling]." (In re Albert T. (2006) 144 Cal.App.4th 207, 217.)
If the department carries that initial burden, "the burden shifts to the parent to prove that it is in the child's best interest for the juvenile court to exercise its discretion to provide reunification services in this case." (Jayden M., supra, 93 Cal.App.5th at p. 1272; see § 361.5, subd. (c)(2).) "In exercising this discretion, the court may consider a variety of factors relevant to the child's best interest, including (1) the parent's current efforts and fitness, (2) the parent's history, (3) the gravity of the problem that led to the assertion of dependency, (4) the strength of the bonds between the child and the parent and between the child and the current caregiver, and (5) the child's need for stability and continuity." (Jayden M., at pp. 1272-1273 [cleaned up].)
We review the juvenile court's finding the department carried its initial burden for substantial evidence, and its assessment of the child's best interest for abuse of discretion. (Jayden M., supra, 93 Cal.App.5th at p. 1273.)
Some appellate courts, including this division, have construed section 361.5, subdivision (b)(10), to apply not only when the prior case involved a sibling or half sibling of the child in the current case, but also when it involved the same child. (E.g., In re I.A. (2019) 40 Cal.App.5th 19, 26-27; In re Gabriel K. (2012) 203 Cal.App.4th 188, 196 (Gabriel K.).) Other courts have read the statutory language more literally, requiring the involvement of "any sibling or half sibling" (§ 361.5, subd. (b)(10)), and holding this bypass provision does not apply where the same child is involved in successive cases. (E.g., J.A. v. Superior Court (2013) 214 Cal.App.4th 279, 284 (J.A.); In re B.L. (2012) 204 Cal.App.4th 1111, 1115-1116 (B.L.).)
We need not take sides in this split of authority to resolve this case. Mother does not challenge the juvenile court's conclusion that she failed to make reasonable efforts to treat the problems that led to the prior removal: the ongoing domestic violence between her and father. There is also no question the juvenile court in the prior dependency ordered mother's reunification services terminated because she failed to reunify with the children after removal. Under In re I.A. and Gabriel K., subdivision (b)(10) of section 361.5 applies for those reasons. Under J.A. and B.L., the subdivision still applies, because each child has a sibling with whom mother failed to reunify in the prior dependency. For S.H., that sibling is M.H.; for M.H., it is S.H.
Mother reads J.A. and B.L. to "preclude" applying section 361.5, subdivision (b)(10), in "situations involving the same children for which prior reunification efforts were unsuccessful." But that is not what J.A. or B.L. hold. Rather, those cases hold the statutory language should be applied literally: "'"[I]f the statutory language is not ambiguous, then we presume the Legislature meant what it said, and the plain meaning of the language governs."'" (B.L., supra, 204 Cal.App.4th at p. 1116; see also J.A., supra, 214 Cal.App.4th at p. 284 ["As did the court in B.L., we presume the Legislature meant what it said"].) The language the Legislature used in section 361.5, subdivision (b)(10), was "any siblings or half siblings" (italics added), not "any sibling or half sibling other than those also in the current case." Mother offers no authority and no reasoned argument about why any arguable ambiguity in the statute should be resolved as she asserts, rather than by following In re I.A. and Gabriel K. We conclude the juvenile court's determination that the department carried its initial burden to show section 361.5, subdivision (b)(10), applies is supported by substantial evidence.
Further, we find no abuse of discretion in the juvenile court's assessment of the children's best interests. Mother points to various factors that could have supported a different conclusion. Nevertheless, the juvenile court was entitled to give dispositive weight to factors tending to show reunification efforts were unlikely to succeed. (See Jayden M., supra, 93 Cal.App.5th at p. 1273 ["offering reunification services that are destined to fail is not in the child's best interest"].) Not just once, but twice before, after receiving services during a dependency, mother and father had failed to benefit from those services and resumed the pattern of domestic violence with one another that caused the dependency. The trial court reasonably found unconvincing mother's arguments and evidence tending to show this time would be different. (See Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1126 ["evidence in the record supporting the opposite finding . . . does not mean the court abused its discretion"].) The children were also thriving in the care of their maternal grandmother, who seemed well prepared to provide them stability and continuity. On this record, we may not disturb the juvenile court's ruling.
DISPOSITION
The juvenile court's order sustaining as to mother allegation b-3 of the section 300 petition is reversed. In all other respects, the jurisdictional and dispositional orders are affirmed.
We concur: MILLER Acting P. J., MENETREZ J.