Opinion
C085601
06-18-2018
In re M.B., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent, v. V.B., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JD238194)
Father V.B. contends the juvenile court erred in denying him reunification services with respect to minor M.B., due to his incarceration. (Welf. & Inst. Code, § 361.5, subd. (e); statutory section references that follow are to the Welfare and Institutions Code, unless otherwise set forth.) We affirm the trial court's orders.
FACTS AND PROCEEDINGS
In January 2016, minor's half sibling, J.D. (then age two), was adjudged to be a dependent of the court, based in part on mother's untreated substance abuse. (§ 300, subd. (b).) J.D. was returned to mother's care in November 2016.
In June 2017, minor was born and tested positive for methamphetamine, amphetamine, and narcotics. Mother, J.M., also tested positive for methamphetamine and amphetamine at delivery and prenatally and admitted to using methamphetamine during pregnancy. Mother tested positive for methamphetamine on March 7, March 17, April 13, April 20, May 12, May 25, and May 29, 2017, while pregnant with minor.
Father was incarcerated when minor was born due to a felony conviction in April 2017 for making or possessing counterfeit plates. He had a scheduled release date of February 2018. (Pen. Code, § 480, subd. (a).)
Minor was released to maternal grandmother, D.K., on June 3, 2017.
On June 9, 2017, the Sacramento County Department of Child, Family and Adult Services (the Department) filed a section 300 petition on behalf of minor. (§ 300, subds. (b) & (j).) A petition was also filed on J.D.'s behalf. (§ 387.)
During the June 23, 2017 detention hearing, the juvenile court found father to be the presumed father. The court ordered minor and J.D. detained and placed with the maternal grandmother. Father requested services and visitation, stating he was currently in counseling and taking parenting classes. Father's counsel ultimately agreed the court should not order visitation pending the jurisdiction hearing. The court ordered no visits for father while incarcerated. Reunification services were ordered for both mother and father, without prejudice.
The July 2017 jurisdiction/disposition report indicated mother acknowledged the section 300 petition was true. Minor appeared healthy, and maternal grandmother stated she was willing to adopt minor and J.D., should mother and father fail to reunify. The report also detailed father's extensive criminal history, with over nine separate criminal cases resulting in five felony convictions from 2004 through 2017. The Department recommended against services, reasoning they would be detrimental to minor. (§ 361.5, subd. (e)(1).) Father's scheduled February 2018 release date from incarceration exceeded the statutory six-month time frame for reunification. The Department also considered minor's age and his relationship with father, noting father had "established no relationship with [him]," given that father had been incarcerated since his birth. The Department further recommended no visitation for father while he was incarcerated.
In August 2017, the Department filed an addendum report noting father had pleaded guilty to felony possession of unauthorized drugs in prison. (Pen. Code, § 4573.6.) His projected release date had been extended to April 9, 2018, and he had been moved to the maximum security housing, where no services were available. Father told the social worker he was "very sad" he had not seen minor. He stated he loved J.D. and wanted to raise the kids together, with mother.
The social worker met with father on August 11, 2017, but father failed to disclose his recent criminal conviction and denied any substance abuse, claiming he had been "clean for almost two years." Father also told the social worker he was not at fault for his recent conviction involving counterfeit plates, claiming his friend had left a bag in his car and he had no idea what it contained until the police found it. According to father, his friend told the police the bag was his, and the charge "was not me." The Department continued to recommend no reunification services and no visitation until father was released from incarceration.
During the September 14, 2017 jurisdiction hearing, the Department informed the juvenile court that father's new scheduled release date, March 9, 2018, was four days short of six months from the hearing date. The Department reiterated its argument that reunification services for father should be denied because they would be detrimental to minor. Father had been incarcerated since minor's birth and had never met minor. In addition, father had a "pretty extensive criminal history," and had another felony conviction since minor's birth.
Father submitted to the juvenile court's jurisdiction but opposed the denial of reunification services as to him. Father testified he had attended classes on parenting, anger management, and substance abuse while he was housed in the "honor side." However, a few weeks before the hearing he was transferred out of the honor side to a unit that offered no services, due to his conviction for having drugs in the prison. He expected to be transferred back to the honor side in 30 days and intended to sign up for services again. Father further testified he believed his projected release date was subject to change to February 22, 2018.
Father testified he had not yet met minor, and only had information from the social worker as to minor's status. Still, father hoped to be a family with minor and J.D. Father testified he had lived with J.D. for two years and "love him like my own." Father hoped to change so he could "be a better father to [his] children." Upon his release, he hoped to get a job at a warehouse and use his fork lift certification. He had held a job prior to being incarcerated, had strong family support, and planned to participate in an outpatient substance abuse treatment program upon his release.
The juvenile court found that section 361.5, subdivision (e)(1) applied to father and denied him reunification services. The court reasoned there was little to no likelihood of success from services, and offering them would delay stability for minor and be detrimental. The court "consider[ed] the factors listed in the statute and also the father's testimony." Minor was very young (three months at the time of the hearing) and had no bond with father, since he was born when father was incarcerated. Father was scheduled to be released from custody "only shortly before" the six-month review hearing, and father was convicted of a new crime while he was incarcerated. Father's crime involved counterfeit plates, and the court found it "significant" that father "does not take responsibility for the crime. He seems to essentially deny or say that he took the fall for someone else." In addition, father committed the crime of having drugs in prison, despite telling the social worker he had been "clean and sober" for two years and testifying he took classes in substance abuse treatment. Moreover, father had an "extensive criminal record," with a "significant" number of "serious crimes," including: (1) a 2004 conviction for DUI causing injury, resulting in a five-year state prison sentence; (2) a 2011 conviction for possession of a firearm, resulting in a four-year state prison sentence; and (3) convictions in 2005, 2007, 2010, and 2011 for one felony and three misdemeanors, with two of those crimes involving firearms. The court did not find there was any detriment to minor if reunification services were not offered. Finally, the court considered father's testimony that he wanted to change and make a better life for himself and his family. The court noted father testified his parents and family were supportive and he had a loving, long-term relationship with J.D. Despite father's positive family experiences and desire to change, father continued to commit crimes, including possessing drugs in prison.
Father filed a timely appeal.
DISCUSSION
I
Father's Reunification Services
Father contends the juvenile court erred in denying him reunification services. According to father, there was insufficient evidence to support the court's finding that providing reunification services to father would be detrimental to minor. In addition, reunification services for father would not delay stability for minor, since he was placed with maternal grandmother and she was willing to adopt minor and J.D. The evidence indicated there was a likelihood for success with services, since father had previously participated in classes during his incarceration and intended to resume classes when he was moved to a unit where they were offered. Also, father had shown he was capable of bonding with minor if he was given the opportunity for visitation, given his relationship with J.D. Mother supported father's request for reunification services.
Father also argues his criminal history is not dispositive. According to father, his conviction involving counterfeit plates is not a serious or violent felony, and most of his convictions were misdemeanors. In addition, there is nothing in the record indicating what type of unauthorized drug father had in his possession in prison, and the statute encompasses a "very broad category of substances," including anabolic steroids. Finally, father argues the trial court could have continued father's initial six months of services, even though his date of release was close to the six-month review hearing. (§ 366.21, subd. (e).)
"As a general rule, reunification services are offered to parents whose children are removed from their custody in an effort to eliminate the conditions leading to loss of custody and facilitate reunification of parent and child." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) Under section 361.5, subdivision (e)(1), when a parent is incarcerated, "the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the length and nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered . . . , the likelihood of the parent's discharge from incarceration . . . within the reunification time limitations described in subdivision (a), and any other appropriate factors."
"Section 361.5 subdivision (e)(1) does not require that each listed factor exist in any particular case, nor does it specify how much weight is to be given to a factor bearing on detriment, listed or not." (Edgar O. v. Superior Court (2000) 84 Cal.App.4th 13, 18.) "The statutes governing reunification services and review hearings must be considered in light of the juvenile dependency system as a whole. [Citation.] The overall objective of that system is the protection of abused or neglected children and the provision of permanent, stable homes if they cannot be returned to parental custody within a reasonable time. [Citation.] The general purpose of dependency law is to safeguard the welfare and best interests of children. [Citations.]" (In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1241.)
Despite father's contentions, substantial evidence supports the court's finding under the factors in section 361.5, subdivision (e) that delaying permanent placement for minor in an attempt to reunify him with father would be detrimental to minor. Father had no bond with minor, as he had never met minor, let alone been his caregiver. In the absence of a bond between minor and father, there was no detriment to minor if reunification services were not provided.
Minor was a newborn when he was detained, and his young age is also a factor under section 361.5, subdivision (e). For children under the age of three, "court-ordered services shall be provided for a period of six months from the dispositional hearing . . . , but no longer than 12 months from the date the child entered foster care." (§ 361.5, subd. (a)(1)(B).) Under section 361.49, a child is "deemed to have entered foster care on the earlier of the date of the jurisdictional hearing held pursuant to Section 356 or the date that is 60 days after the date on which the child was initially removed from the physical custody of his or her parent or guardian." The dispositional hearing was on September 14, 2017; six months from that date was March 14, 2018. Father's tentative release date was set for March 9, 2018, only four days before the six-month cutoff date. Minor was initially removed from mother's care on June 3, 2017, so the 12-month cutoff date was August 3, 2018, or five months after father was due to be released.
Despite father's supportive family and desire to change, he had an extensive criminal history, including five felony convictions. Father's criminal behavior continued after minor's detention, with father being convicted in August 2017 of possessing drugs in prison. Regardless of what type of drug he possessed, his actions demonstrated his failure to place minor's needs above his own. Moreover, father failed to inform the social worker about his August 2017 conviction and claimed he had been sober for two years. He also blamed his friend for his conviction for making or possessing counterfeit plates, indicating he does not take responsibility for his actions. In addition, there was no opportunity for father to establish a bond with minor through visitation because the court had denied visitation as long as he remained incarcerated.
While "there is ample and familiar case authority holding incarcerated parents must generally be provided reasonable services," the court is not required to attempt services if they are likely to fail, which serves only to delay permanency for a child. (Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018, 1030, 1031.) Although father had initially taken classes while he was on the honor side, his August 2017 conviction for possessing drugs in prison resulted in him being moved to the maximum security unit, where services were unavailable to assist with the reunification process. Father believed he would be returned soon to the honor side, but father also testified he believed his scheduled release date would change. Given father's history, there was no suggestion that such a short period of reunification services following father's incarceration was likely to be successful in reunifying father and minor. (See In re Aryanna C., supra, 132 Cal.App.4th at p. 1242 ["under most circumstances, it is reasonable to expect a parent will receive at least six months of reunification services"].)
In a related argument, father contends the juvenile court "decided that offering father reunification services would be futile, rather than detrimental to the minor." (See In re Kevin N. (2007) 148 Cal.App.4th 1339, 1344-1345 [reversing where juvenile court failed to make a finding of detriment].) This contention lacks merit, given the juvenile court's consideration of the statutory factors and statement, it found reunification services would be "detrimental" to minor. For similar reasons, we also find without merit father's argument the juvenile court failed to consider the policy favoring reunification services for the preservation of the family unit.
DISPOSITION
The orders are affirmed.
HULL, Acting P. J. We concur: ROBIE, J. HOCH, J.