Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. Nos. JD08-3176 & JD08-3177.
Ruvolo, P.J.
I. INTRODUCTION
Petitioner T.B., mother of U.B. and U.S., seeks extraordinary writ review (Cal. Rules of Court, rule 8.452) of a juvenile court order denying family reunification services and setting the matter for a Welfare and Institutions Code section 366.26 hearing on April 8, 2009, to consider termination of parental rights. She contends that the court’s findings misinterpreted and misapplied section 361.5, subdivision (b)(10), which authorizes the juvenile court to deny reunification services where the parent has failed to reunify with another child and has not made a reasonable effort to treat the problems that led to the failure to reunify with the other child. We disagree and deny the petition for extraordinary writ.
All rule references are to the California Rules of Court. All statutory references are to the Welfare and Institutions Code.
II. Facts AND PROCEDURAL HISTORY
On June 30, 2008, the San Francisco County Human Services Agency (the Department) filed a dependency petition on behalf of three-year-old U.B. and ten-month-old U.S. (the minors). The petition alleged, among other things, that petitioner (1) had a substance abuse problem; (2) had a history of being involved in relationships characterized by domestic violence; (3) suffered from mental health problems and anger management problems that required treatment; (4) failed to cooperate with community resources and previous service programs; and (5) had six other children who were dependents of Solano County and placed out of her care.
In July 2008, the juvenile court ordered that the minors be detained in foster care. The court then set the matter for a contested jurisdictional and dispositional hearing. In the report prepared for this hearing, the Department recommended that the juvenile court not order family reunification services to petitioner and to proceed directly to a section 366.26 hearing so that the minors could be adopted. The Department provided documentary evidence that petitioner had six other children, besides the minors, who had been removed from her custody and that the juvenile court had terminated petitioner’s parental rights as to four of these children. The records indicate that petitioner did not reunify with her children despite receiving extensive family reunification services. The worker wrote, “Throughout the years, various county protective agencies have offered [petitioner] mental health, substance abuse and parenting services designed to strengthen, support and stabilize her. Most often, her participation was minimal and reunification services were eventually terminated. . . . Indeed, even when [petitioner] has engaged in services, she has really never been able to maintain their benefits for any significant length of time.” (Original italics.)
The worker documented the services that were offered to petitioner in the current case. Despite referrals for drug abuse and mental health problems, the worker wrote that petitioner’s participation was “nominal.”
On October 22, 2008, the Department filed an addendum report. It was reported that in the “past few months, the [D]epartment has been provided information that the children have been left alone, that they have been with [petitioner] while she uses drugs, home while she is having sex for drugs and that drugs have been sold out of the home.” The social worker wrote that petitioner had done nothing to address the issues that brought the matter before the court. She failed to consistently drug test. She was admitted to Victory Outreach Program, a residential faith-based program, but she left the same day.
At the contested disposition hearing in this matter, the social worker recommended that no reunification services be offered to petitioner pursuant to section 361.5, subdivision (b)(10), because petitioner’s parental rights were terminated as to four of her six other children; she failed to benefit from prior reunification services, and that she failed to follow through with the services offered to her in this case.
After taking jurisdiction of the minors under section 300, subdivisions (b) (failure to protect), (d) (substantial risk of sexual abuse), (g) (no provision for support), and (j) (abuse of sibling), the juvenile court concluded that no reunification services be provided to petitioner under section 361.5, subdivision (b)(10). The court then set the matter for a section 366.26 permanent plan hearing on April 8, 2009, to consider termination of petitioner’s parental rights. Petitioner seeks an extraordinary writ vacating the juvenile court’s order.
III. DISCUSSION
The main issue in this writ concerns the juvenile court’s denial of reunification services to petitioner under section 361.5, subdivision (b)(10). Petitioner presents a two-pronged attack on this denial. First, petitioner argues that the court’s jurisdictional finding pursuant to section 300, subdivision (j) does “not state a cause of action to support the denial of reunification services.” Next, petitioner contends the juvenile court’s findings under section 361.5, subdivision (b)(10) were legally insufficient because “the court could not make a finding that [petitioner] had not subsequently made a reasonable effort to treat the problems that led to the removal of the sibling or half-sibling of the child . . . .”
Family reunification services play a crucial role in dependency proceedings. (In re Alanna A. (2005) 135 Cal.App.4th 555, 563.) Unless a specific statutory exception applies, the juvenile court must provide services designed to reunify the family within the statutory time period. (Id. at pp. 563-564.) The statutory exceptions to providing reunification services under section 361.5 have been referred to as reunification “bypass” provisions. (§ 361.5, subd. (b)(1)-(15); see, e.g., Francisco G. v. Superior Court. (2001) 91 Cal.App.4th 586, 597; Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880.) There is no general bypass provision; the court must find by clear and convincing evidence that one or more of the subdivisions described in section 361.5, subdivision (b) apply before it may deny reunification services to a parent. (§ 361.5, subd. (b)(1)-(15).)
At issue here is section 361.5, subdivision (b)(10), which applies when reunification services previously provided with respect to the dependent child’s siblings have been terminated. Section 361.5, subdivision (b)(10) contemplates a two-step inquiry: (1) whether the parent previously failed to reunify with the dependent child’s sibling; and (2) whether the parent subsequently made “reasonable efforts to correct the problem that led to the sibling being removed from the parent’s custody.” (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.)
This section provides: “(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.” (§ 361.5, subd. (b)(10).)
Petitioner first contends that the juvenile court’s orders must be reversed because the section 300, subdivision (j) allegation in the jurisdictional petition failed to state facts sufficient to support bypassing reunification services. “Merely stating that [petitioner] has six other children who are dependents and have been placed out of her care does not state a cause of action because there is nothing in the . . . allegations that allege that the Juvenile Court previously ordered termination of [petitioner]’s reunification services as to siblings or half-siblings.”
Under section 300, subdivision (j), a child comes within the jurisdiction of the juvenile court if two prongs are met: (1) the child’s sibling has been abused or neglected as those terms are defined in the enumerated subdivisions, and (2) there is a substantial risk that the child who is the subject of the current proceedings will be abused or neglected. (See, e.g., In re Ricardo L. (2003) 109 Cal.App.4th 552, 566; In re Rubisela E. (2000) 85 Cal.App.4th 177, 197.) In determining whether there is substantial risk to the child, the court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and sex of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court deems probative. (§ 300, subd. (j).)
The instant petition alleged that the minors were dependents under section 300, subdivision (j) because petitioner “has six other children who is [sic] court dependents of Solano County. The children are placed out of [petitioner]’s care.” However, these allegations are not the same as the standards by which a parent may lawfully be denied reunification services. To the contrary, petitioner’s argument incorrectly focuses on the distinct standards applicable to establishing jurisdiction over a dependent child instead of the standards used at arriving at an appropriate placement at the dispositional hearing. To justify the assumption of dependency jurisdiction, the juvenile court must find by a preponderance of the evidence that the child falls within one or more of the statutory descriptions listed in section 300. (§ 355.) Once jurisdiction is established, among the permissible dispositional choices is the court’s decision to deny reunification services to a parent after finding by clear and convincing evidence that one or more of the subdivisions described in section 361.5, subdivision (b) applies. (§ 361.5, subd. (b).)
The juvenile court’s jurisdiction over the minors was not based solely on section 300, subdivision (j), but also on findings pursuant to subdivisions (b), (d) and (g). Petitioner does not present any challenge to the jurisdictional findings under subdivisions (b), (d) and (g). Accordingly, any attack on the subdivision (j) allegation is meaningless because, even if we found petitioner’s argument had merit, the juvenile court would have lawfully assumed jurisdiction over the minors under the other subdivisions. (In re Dirk S. (1993) 14 Cal.App.4th 1037, 1045 [single basis of jurisdiction is sufficient to uphold dependency court’s order]; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875-876 [where one basis for jurisdiction supported by substantial evidence, court need not consider sufficiency of evidence to support other grounds].)
It is clear from petitioner’s writ petition that she is challenging the court’s dispositional order, specifically the trial court’s findings under section 361.5, subdivision (b)(10). As we have already noted, the propriety of the court’s order bypassing reunification is subject to the law governing section 361.5, subdivision (b)(10), under which the court is required to “make an express, on-the-record finding” in accordance with the requirements of that provision “notwithstanding the existence of an earlier jurisdictional finding on the same subject.” (In re Rebekah R. (1994) 27 Cal.App.4th 1638, 1651.) Consequently, petitioner’s arguments based on the jurisdictional findings pursuant to section 300, subdivision (j), are entirely irrelevant.
More to the point, petitioner contends the juvenile court’s findings under section 361.5, subdivision (b)(10) were legally insufficient because “the court could not make a finding that [petitioner] had not subsequently made a reasonable effort to treat the problems that led to the removal of the sibling or half-sibling of the child . . . .” Here, the court made the following remarks at the conclusion of trial: “No reunification is ordered to be provided to the mother pursuant to [s]ection 361.5, sub[d.] ([b])(10).” When the deputy city attorney reminded the court that the Department was proceeding under both subdivisions (b)(10) and (b)(11), the court stated, “The reason I didn’t find under [subdivision]([b])(11) is because . . . I need to make a finding that the parent has not made reasonable efforts to alleviate the problems that led to the initial removal, and I don’t have that information. So we will proceed on subdivision [(b)](10).”
The deputy city attorney concedes that the court erred in its analysis of the statutory scheme, and we agree. Subdivisions (b)(10) and (b)(11) of section 361.5 are triggered by two findings. The first is that the parent has undergone termination of reunification services (subd. (b)(10)) or termination of parental rights (subd. (b)(11)) in a proceeding involving a sibling of the children who are the subject of the current case. There is no dispute that this occurred in the instant case. The second required finding for both subdivision (b)(10) and (b)(11) is that the parent “has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling . . . .”
However, the record does not contain any written order purporting to make the trial court’s comments its final decision on the matter. On the contrary, the record reflects that in its specific written findings pursuant to section 361.5, subdivision (b)(10), the court supplied the omitted finding when it concluded “that [petitioner] has not subsequently made a reasonable effort to treat the problems that led to the removal of the sibling or half-sibling.” Petitioner urges us to ignore the court’s written finding because “the oral finding made on the record at the December 9, 2008 hearing expressly contradicts” it.
However, until a final decision is rendered, the trial court is entitled to disregard its prior oral pronouncements of intended decision, even if they directly contradict the court’s final order. (See Ripani v. Liberty Loan Corp. (1979) 95 Cal.App.3d 603, 614.) In other words, so long as its oral ruling has not been entered in the minutes as the final order, the court is entitled to file a written order that differs from its oral ruling. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1170.)
After the matter was argued, the trial court had the ability to reconsider the entire record before it, including the overwhelming evidence that petitioner had not made any effort whatsoever to treat the problems that led to removal of her other children. Petitioner herself admits in her writ petition that “evidence was admitted which discusses the problems presenting [petitioner] in the prior dependencies and [petitioner]’s failure to address those problems either before or currently . . . .” Indeed, there is no evidence that she complied with any aspect of the services provided by the Department after the dependency petition was filed on the minors’ behalf. As we have just observed, the court was fully within its rights to change its mind and make an express written finding on the record to justify the denial of reunification services to petitioner. The court’s conclusion that petitioner had not made a reasonable effort over the many years to rectify the problems that led to the removal of her children was amply supported by the record.
IV. DISPOSITION
The petition is denied. The request for stay of the section 366.26 hearing, which is set for April 8, 2009, is denied, and our decision is final as to this court immediately. (Rule 8.264(b)(3).).
We concur: Sepulveda, J., Rivera, J.