Filed 11/7/13 In re K.P. CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE
OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re K.P.
et al., Persons Coming Under the Juvenile Court Law.
FRESNO COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Plaintiff and Respondent,
v.
KEVIN P.,
Defendant and
Appellant.
F066883
(Super.
Ct. Nos. 07CEJ300173-1 & 07CEJ300173-2)
THE COURT
name="_ftnref1" title="">*
APPEAL from
orders of the Superior Court of
Gino de
Solenni, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin
Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
Kevin
appeals from the juvenile court’s dispositional orders denying him
reunification services under Welfare and Institutions Code section 361.5,
subdivision (b)(10) and (13)
name="_ftnref2" title="">[1] as to his 12-year-old son and 11-year-old
daughter. We affirm.
PROCEDURAL AND FACTUAL SUMMARY
These
dependency proceedings mark the second time the
(department) had to intervene to protect Kevin’s son and daughter. The first intervention occurred in 2007 when the
department received a report that the family, Kevin, the children’s mother, and
the children, then five and four years of age, were living in a “drug house.†Both parents admitted using drugs and Kevin’s
drug use was extensive. He said he used
every drug except heroin, had 4,000 hits of LSD and used cocaine on the day the
children were taken into protective custody.
He also stated he had been in four inpatient and two outpatient
substance abuse programs. The children
stated they saw Kevin hit their mother in the face, causing a bruised eye, and
saw her hold a butcher knife to Kevin’s throat.
The
juvenile court exercised its dependency
jurisdiction over the children and denied Kevin reunification services under
section 361.5, subdivision (b)(13) because of his extensive, abusive and chronic
use of drugs and alcohol. The juvenile
court provided the mother reunification
services and returned the children to her custody in August 2008, granting
her sole legal and physical custody. The juvenile court granted Kevin reasonable
supervised visitation.
Over the
next two years, the mother violated the juvenile court’s visitation order by
allowing Kevin unsupervised contact with the children. In late 2010, she left them in his care and
did not return.
Meanwhile,
Kevin continued to abuse drugs. In June
2012, he was convicted of possession of a controlled substance for sale and
sentenced to over 10 months in jail.
Prior to his incarceration, he married Megan B., a friend, so she could
care for the children. Megan used methamphetamine
and heroin intravenously and while caring for the children, developed an
abscess on her leg that was so severe it prevented her from walking. She began to urinate and defecate in buckets
and cups and could no longer cook or clean for the children or take them to
school. Kevin’s daughter tried to help
Megan by cleaning the floor of the pus and blood from Megan’s abscess.
In September 2012, Megan was
admitted to the hospital, leaving the children alone in the apartment where Megan
had drugs in containers on her bed and a box of needles.
The department took the children,
then 10 and 9 years of age, into protective custody and placed them with their
paternal aunt.
In February 2013, the juvenile
court convened a contested hearing on the department’s recommendation to
exercise its dependency jurisdiction and deny Kevin reunification services
under section 361.5, subdivision (b)(10) and (13). Kevin’s then 10-year-old daughter testified
that Megan was using drugs. Asked how
she knew that, the daughter said Megan had “dots on her arms†and had a drawer
the children were not allowed to look in.
She said Megan had the “dots†when they first met her. She also said she heard a conversation
between her father and his friend, James, in which James told Kevin that Megan
was using drugs and would cause the children to be put in foster care. The daughter could not remember seeing Kevin
or Megan using drugs but saw lighters and broken pens with no ink.
Kevin’s 11-year-old son testified he
never saw Megan using drugs and did not hear the conversation with James.
Kevin testified he never saw Megan
use drugs intravenously and never saw any track marks on her body. The only drug he saw her use was
marijuana. He said James told him Megan
was “messed up†referring to her emotional state after her parents kicked her
out of the house. Following Kevin’s
testimony, the juvenile court continued the hearing.
In March 2013, the juvenile court
reconvened the contested hearing,
heard argument and ruled. The juvenile
court adjudged the children dependents of the court, ordered them removed from
parental custody and denied Kevin reunification services under section 361.5,
subdivision (b)(10) and (13). The
juvenile court ordered reunification services for the mother and set a
six-month review hearing for August 2013.
This appeal ensued.
DISCUSSION
Kevin contends the juvenile court
erred in denying him reunification services under section 361.5, subdivision
(b)(10) because it did not apply.
Alternatively, he contends the juvenile court abused its discretion in
denying him reunification services under subdivision (b)(10) and (13) because
reunification with him served the children’s best interests.
The juvenile court is required to
order family reunification services whenever a child is removed from parental
custody unless the court finds by clear and convincing evidence that the child
is described by any of 16 exceptions set forth in section 361.5, subdivision
(b). (§ 361.5, subds. (a) &
(b)(1)-(16).) In this case, the juvenile
court denied Kevin reunification services based on subdivision (b)(10) which
pertains to a parent whose reunification services as to a sibling were
terminated and subdivision (b)(13) which pertains to a parent with a chronic
and extensive substance abuse problem who resisted treatment. Section 361.5, subdivision (b)(10) and (13)
provide in relevant part:
“(b) Reunification
services need not be provided to a parent … described in this subdivision when
the court finds, by clear and convincing evidence, …: [¶] … [¶] (10) [t]hat the
court ordered termination of reunification services for any siblings … of the
child because the parent … failed to reunify with the sibling … [and the]
parent … has not subsequently made a reasonable effort to treat the problems
that led to removal of the sibling … of that child from that parent …[;] [¶] …
[¶] (13) [t]hat the parent … of the child has a history of extensive, abusive,
and chronic use of drugs or alcohol and has resisted prior court-ordered
treatment for this problem during a three-year period immediately prior to the
filing of the petition that brought that child to the court’s attention, or has
failed or refused to comply with a program of drug or alcohol treatment … on at
least two prior occasions, even though the programs identified were available
and accessible.â€
Kevin contends section 361.5, subdivision
(b)(10) does not apply because the juvenile court never ordered reunification
services for him, therefore, services were not terminated. Assuming for the sake of argument, Kevin is
correct and subdivision (b)(10) does not apply, we would not find error in the
juvenile court’s application of the statute because the juvenile court also
denied Kevin services under subdivision (b)(13) which he does not
challenge.
Kevin next contends that, even if
the requirements of section 361.5, subdivision (b)(13) were met, the
juvenile court abused its discretion in failing to order reunification services
anyway under section 361.5, subdivision (c).
It is true that a parent described in subdivision (b)(13) may still
obtain reunification services if the parent proves that services would be in
the child’s best interests. Section
361.5, subdivision (c) provides in relevant part: “The court shall not order reunification for a
parent … described in paragraph … (13) … of subdivision (b) unless the court
finds, by clear and convincing evidence, that reunification is in the best
interest of the child.†It is the
parent’s burden to demonstrate that reunification services would be in the
minor’s best interests. (
55, 66 (Ethan N.).)
In Ethan N., this court listed various factors relevant to the
determination of a child’s best interest vis-à -vis reunification. Those factors include the gravity of the
problem requiring juvenile court intervention, the strength of the parent/child
bond and the child’s need for stability and continuity. (Ethan
N., supra, 122 Cal.App.4th at pp.
66-67.)
Kevin argues the
applied to the evidence on the record compel a finding in his favor. Specifically, he argues that leaving the
children with an intravenous drug user is not as grave as other reasons for
removing children such as the death of a sibling as was the case in
(Ethan N.,
him and wanted to return to his custody and providing him services would not
delay permanency planning for them since their mother was going to receive
reunification services.
As we stated in
interest ‘is an elusive guideline that belies rigid definition. Its purpose is to maximize a child’s
opportunity to develop into a stable, well-adjusted adult.’ [Citation.]â€
(Ethan N.,
best interest cannot be rightly determined without full consideration of all
relevant information. If such were not
the case, Kevin’s argument would appear to have merit since the evidence he
cites positively supports the Ethan N.
factors he selected.
In this case, it was not in the
children’s best interest to reunify with Kevin because he abused drugs and
could not care for them. He not only
exposed them to his drug use but immersed them in the lifestyle. They were at times homeless and in the end were
essentially caring for an intravenous drug user. Moreover, there was no reason to believe,
given Kevin’s treatment failure, that he would rehabilitate himself and make a
safe home for his children.
We find no error.
DISPOSITION
The dispositional orders entered on
March 7, 2013, are affirmed.
Franson, J.
the Welfare and Institutions Code unless otherwise indicated.
