A.E. v. Super.
Filed 2/14/13 A.E. v. Super. Ct. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
A.E.,
Petitioner,
v.
THE SUPERIOR COURT OF
SAN BERNARDINO COUNTY,
Respondent;
SAN BERNARDINO
COUNTY CHILDREN
AND FAMILY SERVICES,
Real
Party in Interest.
E057595
(Super.Ct.Nos.
J245951 & J245952)
OPINION
ORIGINAL
PROCEEDINGS; petition for extraordinary
writ. Cheryl C. Kersey, Judge. Petition denied.
David
M. Levy for Petitioner.
No
appearance for Respondent.
Jean-Rene
Basle, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Real
Party in Interest.
Petitioner
A.E. (father) filed a petition for extraordinary writ pursuant to California
Rules of Court, rule 8.452, challenging the juvenile court’s order denying reunification services as
to his children, A.E.
name="_ftnref1" title="">[1] and E.E. (the children), and setting a Welfare
and Institutions Code
name="_ftnref2" title="">
hearing. Father argues that the juvenile
court erred in denying him reunification
services under section 361.5, subdivisions (b)(10) and (e)(1). We deny his writ petition.
FACTUAL
AND PROCEDURAL BACKGROUND
On
July 13, 2012, the
Services (CFS) filed a section 300 petition on behalf of the children. A.E. was three years old, and E.E. was 15
months old. The petition alleged that
the children came within the provisions of section 300, subdivisions (a)
(serious physical harm), (b) (failure to protect), and (g) (no provision for
support). The children’s mother (mother)
methamphetamines while the children were in her care. Father did not live with mother and the
children, and his whereabouts were unknown at that time. The court detained the children in foster
care.
On July 27, 2012, CFS filed an amended petition, alleging that both
father and mother were incarcerated.
Father’s anticipated release date is in February 2013.
Jurisdiction
The
social worker filed a jurisdiction report on August
1, 2012, and recommended that the children be declared dependents of the court.
At
the jurisdiction hearing on August 27, 2012, the court found father to
be the presumed father of the children.
The court also found that the children came within section 300,
subdivisions (a), (b), and (g), and adjudged them dependents of the court. The court then ordered the matter transferred
to mother’s county of residence, San Bernardino, for disposition.
Disposition
On September 27, 2012, the juvenile court in San Bernardino County accepted the children’s
cases.
The
social worker filed a disposition report on October
15, 2012, and recommended that the court deny father reunification services,
based on section 361.5, subdivision (b)(10).
A disposition hearing was held on November 7,
2012,
and father’s counsel objected to the social worker’s recommendation. The matter was continued, and a trial on the
matter was held on November 28, 2012.
Previous
Dependency Case Involving A.E.
In an
addendum report, the social worker explained that mother had a previous history
with CFS, concerning children she had parented with other men. A.E. was her fourth child, born in 2009 to
her and father. CFS filed a petition on
A.E.’s behalf under Welfare and Institutions Code section 300, subdivision (j),
due to mother’s history. The court
declared A.E. a dependent, but maintained him in the custody of father and
mother under a family maintenance plan.
Father and mother subsequently engaged in domestic violence, and father
was arrested and charged with willful infliction of corporal injury. (Pen. Code, § 273.5, subd. (a).) A Welfare and Institutions Code section 387
petition was filed on January 21, 2010, alleging that A.E. came
within Welfare and Institutions Code section 300, subdivision (b). That petition alleged that A.E. had been
exposed to domestic violence when father attacked mother, in his presence. A.E. was removed from father’s care, but was
maintained with mother, on the condition that she continue living in a
transitional housing program. Father was
sentenced to 365 days in county jail after being convicted on the domestic
violence charge. He was credited with
100 days served. He was also offered
reunification services, including a 52-week domestic violence program. As of January 10,
2012,
it was reported that father had only attended 19 sessions of the domestic
violence program and was terminated due to excessive absences.
The
social worker further reported that on March 17,
2011,
the court dismissed the dependency case and maintained A.E. with mother. The status review report from that case
stated that father failed to complete any aspect of his case plan. The juvenile court terminated jurisdiction,
finding that mother had completed her case plan. The court terminated father’s reunification
services. It ordered joint legal custody
for father and mother, and granted physical custody to mother.
Disposition Hearing in the Instant Case
At
the disposition trial on November 28, 2012, father’s counsel requested
reunification services for father, stating that father was the nonoffending
party, since the children were removed from mother’s care while he was in
prison. Counsel addressed the previous
dependency case and argued that father’s services were only terminated because
CFS dismissed the case with a family law
order that gave mother physical custody and father joint legal custody,
with supervised visits. Father’s counsel
stated that father thought he did well with his previous services, and that they
were not terminated because he failed in them, but simply because “[i]t was the
end of the case.†County counsel
asserted that, after the case was dismissed, father was on probation for
domestic violence, and he violated probation in March 2012 and was sent to
state prison.
The
social worker testified at the hearing and confirmed that the previous case was
closed on March 17, 2011, and that reunification services for father were
terminated. Moreover, father had failed
to complete any part of his case plan.
Father
also testified at the hearing and stated that A.E. was previously removed from
his care in January 2010 after he hit mother and was convicted of corporal
injury to a spouse. Father said he was
sentenced to one year in county jail and received 100 days’ credit. He stated that he was in custody until March
29, 2010, and that he was given probation and put on work release. When the court tried to confirm that he was ordered
not to be around mother, father said he was not aware there was a restraining
order. The court reprimanded him for
lying, stating that any release on probation was a “stay-away order on a
domestic violence charge.†Father then
admitted that he lived with mother when he was on probation, and was later
arrested for violating his probation.
Father admitted to the probation violation in January 2011 and was
sentenced to a suspended term of three years in state prison. He was later arrested in February 2012 on
another probation violation and, at that time, the court imposed the three-year
sentence that was previously suspended.
His anticipated release date is in February 2013. Father admitted that, as of the date of the
disposition hearing, he still had not completed a domestic violence program.
County
counsel argued that father should not be provided with reunification services
pursuant to section 361.5, subdivisions (b)(10) and (e)(1).
The
court denied reunification services to father, finding that father never
meaningfully participated in his prior case plan for A.E. The court noted that father had spent most of
the last three years in custody for repeatedly violating court orders, and that
A.E. was now stable in his foster care placement. The court further found that father’s previous
reunification services were ordered terminated, that he had failed to reunify
with A.E., and that he had not made a reasonable effort to treat the problems
that led to the removal of the minor. (§
361.5, subd. (b)(10).) The court set a
section 366.26 hearing for March 28, 2013.
ANALYSIS
The Court Properly Denied
Reunification Services
Father
argues that the court erred in denying him reunification services as to the
children under section 361.5, subdivisions (b)(10) and (e)(1). Specifically, as to section 361.5,
subdivision (b)(10), he asserts that “[i]t is his belief that [section 361.5,
subdivision (b)(1)] should apply only if he had failed services in the past for
this child or a sibling.†He then
contends that there was insufficient evidence that his prior reunification
services were terminated because he failed to reunify with A.E., or that A.E.
was removed from his custody. We
conclude that the court properly denied him services.
A. Standard
of Review
“We
affirm an order denying reunification services if the order is supported by
substantial evidence. [Citation.]†(In re
Harmony B. (2005) 125 Cal.App.4th 831, 839.) “On review of the sufficiency of the
evidence, we presume in favor of the order, considering the evidence in the
light most favorable to the prevailing party, giving the prevailing party the
benefit of every reasonable inference and resolving all conflicts in support of
the order. [Citations.]†(In re
Autumn H. (1994) 27 Cal.App.4th 567, 576.)
B. There
Was Sufficient Evidence to Deny Services
The
court denied reunification services under section 361.5, subdivision, (b)(10),
which provides that reunification services need not be provided to a parent
when the court finds that “the court ordered termination of reunification
services for any siblings or half siblings of the child because the parent . .
. failed to reunify with the sibling or half sibling after the sibling or half
sibling had been removed from that parent . . . and that, according to the
findings of the court, this parent . . . has not subsequently made a reasonable
effort to treat the problems that led to removal of the sibling or half sibling
. . . .â€
name="_ftnref4" title="">[4]
Father
contends that section 361.5, subdivision (b)(10), only applies if he failed in
his previous reunification services, not when he accepted the termination of
services because the court was closing the case. While the record does show that the previous
court terminated jurisdiction because mother completed her case plan, it also
shows that father failed to complete any
aspect of his case plan, and that the court terminated his reunification
services. Thus, the court here properly
applied section 361.5, subdivision (b)(10).
Moreover,
the evidence here supports the juvenile court’s conclusion that father failed
to make reasonable efforts to treat the problems that led to the removal of
A.E. (§ 361.5, subd. (b)(10).) In March 2010, A.E. was removed from father
after father physically attacked mother and exposed A.E. to domestic
violence. Father was offered
reunification services, including a 52-week domestic violence program. However, as of January 10, 2012, it was
reported that he had only attended 19 sessions of the program and was
terminated due to excessive absences. At
the November 28, 2012 disposition hearing in the instant case, father admitted
that he had still not completed the
52-week domestic violence program that he was previously ordered to complete.
Father
also contends that the court erred in denying services under section 361.5,
subdivision (e)(1), which provides that if the parent is incarcerated, the
court need not order reunification services if it determines that services
would be detrimental to the child. In
determining detriment, the court is to consider the children’s ages, parent-child
bonding, the length of the sentence, the nature of the crime, and “any other
appropriate factors.†(§ 361.5, subd.
(e)(1).) Father merely asserts that he
will be released from prison in less than 30 days, and that he is willing and
able to participate in and complete services.
In
denying services, the court noted that father failed to previously reunify with
A.E. by failing to complete his case plan and by not following court orders to
stay away from mother, thereby violating probation. Furthermore, there was no evidence of any
particular bond between father and the children. Moreover, contrary to father’s self-serving
statement that he is willing and able to complete services, his efforts in his
previous dependency case with A.E. show otherwise.
We
conclude that the court properly denied father reunification services.
DISPOSITION
The
writ petition is denied.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
McKINSTER
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] Since father and his child A.E. have the same
initials, any further reference to “A.E.†will concern only the child. We will refer to father simply as
father.
name="_ftn2" title=""> [2] All further statutory references will be to
the Welfare and Institutions Code, unless otherwise noted.
