I.A. v. Super. Ca.
Filed 8/16/12 I.A. v. Super. Ca. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION SIX
I.A., et al.,
Petitioners,
v.
THE SUPERIOR COURT
OF VENTURA COUNTY,
Respondent;
VENTURA COUNTY HUMAN SERVICES AGENCY,
Real Party in
Interest.
2d Civil No.
B241073
(Super. Ct. Nos.
J066641, J067397, J068587)
(Ventura County)
I.A. (Father) and R.A.
(Mother) challenge an order of the juvenile court bypassing family
permanent plan hearing regarding their three minor children. (Welf. & Inst. Code, §§ 361.5, subd.
(b)(4), 366.26, subd. (c).)
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FACTUAL AND PROCEDURAL HISTORY
On June 5, 2007,
County Human Services Agency (HSA) detained then 23-month-old I.H. HSA filed a petition alleging neglect under
section 300, subdivision (b) because 1) Mother and Father had failed to
adequately supervise I.H. and his 11-month-old sibling L.H., who had drowned in
a five-gallon bucket left on the floor of the family trailer; 2) Father had
admitted to using crystal methamphetamine two days prior to L.H.'s death; 3)
Mother had failed to protect the children from Father's substance abuse; and 4)
the home was in an unsanitary condition in that it had an overwhelming stench,
soiled diapers on the floor, rotten food, bugs and flies, a feces-filled toilet
and no running water.
HSA further alleged,
under section 300, subdivision (f) that parents had caused L.H.'s death through
neglect. The petition alleged that
Father was asleep in the home when L.H. drowned in the five-gallon bucket; that
a crack pipe was found at the bottom of the bucket; that L.H. had cuts on his
fingers; that the home was in an unsanitary condition; and that inadequate
supervision by both parents and drug use by Father had contributed to L.H.'s
death, placing his sibling at substantial risk of serious physical harm.
Notwithstanding the
subdivision (f) allegation, HSA did not seek bypass of reunification services
under section 361.5, subdivision (b)(4), because parents were receptive to
services and were mourning the death of their child. After parents waived their trial rights, the
juvenile court sustained the petition and ordered family reunification services
for both parents.
Subsequently, Father
tested positive for multiple substances, including alcohol, methamphetamine and
cocaine, and was discharged from the Ventura County Behavioral Health Drug and
Alcohol Program (ADP) for unsatisfactory attendance and participation. Although Mother complied with her services,
she remained in the relationship with Father and was in denial about his
substance abuse issues. HSA recommended
termination of reunification services to both parents. On July 2, 2008, the juvenile court
terminated Father's reunification services, but extended services to Mother by
agreement of the parties.
Over the next six
months, Mother represented she was no longer in a relationship with
Father. Because she was making progress
in her case plan, the juvenile court ordered
November 2008. Soon thereafter, HSA
received a report that Mother had violated the court's order prohibiting her
from supervising I.H.'s visits with Father.
HSA filed a section 387 petition, and in February 2009, the court
detained I.H. for a second time.
The following month,
Mother gave birth to another child, S.A.
HSA detained S.A. and filed a petition alleging neglect under section
300, subdivision (b) based on Father's lengthy history of substance abuse,
Mother's continued contact with Father, which had led to the removal of S.A.'s
sibling, and the termination of Father's family reunification services due to
his failure to comply with the case plan.
The petition also included an allegation under section 300, subdivision
(f) that parents had caused sibling
L.H.'s death through neglect, placing S.A. at substantial risk of serious
physical harm.
On May 5, 2009, after
several days of contested hearings,
the court sustained HSA's section 387 petition regarding I.H., terminated
Mother's family reunification services and ordered long-term foster care for
the child. The court also sustained
S.A.'s petition but ordered family reunification services for both
parents.
The family situation
improved over the next year. Both
parents engaged in services and continued to maintain separate residences. In October 2009, the juvenile court ordered
family maintenance for Mother and both children and further family
reunification services for Father. After
HSA recommended family maintenance services for Father in April 2010, the situation
began to deteriorate. Parents skipped
several therapy sessions for I.H. Father
missed six drug tests and the ADP told him he had to undergo an additional
twelve weeks of counseling due to absences.
Father failed to return to ADP, to take the required drug tests and to
complete the therapy for I.H. His
individual therapy also was terminated for lack of attendance.
Nonetheless, HSA
recommended dismissal of dependency for both children because Mother had fully
complied with the case plan and had not allowed Father to move back into the
residence. The juvenile court dismissed
the case on September 20, 2010, ordering sole physical custody to Mother and
supervised visitation for Father.
Four separate referrals
occurred after the dismissal -- two for physical abuse and two for general
neglect. On December 11, 2011, a
visiting social worker discovered that I.H., S.A. and their infant sibling,
B.H., were living in conditions similar to those present when their sibling
L.H. died. She observed roaches crawling
on the walls and floor, substantial clutter inside the trailer and piled-up
trash outside, including a broken-up couch with protruding nails and
staples. The trailer had no front door,
and police found two-year-old S.A. and six-year-old I.A. wandering outside the
trailer unsupervised. The children were
dirty and were not wearing jackets or shoes.
When asked about the lack of supervision, Mother responded: "All the kids around here are always
outside near their trailers without adults." She blamed their poor living conditions on the
fact that they were "moving."
Mother gave the same excuse for the unsanitary and dangerous living
conditions that existed at the time of her child's death.
While the social worker
was speaking with Mother, Father refused to cooperate. He continually cursed at the police officers
and, at one point, sat in his car and turned on the radio full blast. When HSA decided to detain all three
children, Father "attempted to go after the [social worker] when three
officers tackled him to the floor."
He was arrested and charged with being under the influence of a
controlled substance and resisting a peace officer.
HSA filed three
petitions under section 300, subdivisions (b) and (f), outlining the history of
the prior dependency proceedings involving I.H. and S.A. and alleging that
"parents have not subsequently made reasonable efforts to treat the
problems that led to the previous removal of the child[ren] from the
parents." Once again, the petitions
included an allegation under section 300, subdivision (f) that parents had
caused L.H.'s death through neglect, placing his siblings at substantial risk
of serious physical harm.
On December 14, 2011,
the juvenile court found a prima facie case on the petitions and placed all
three children in foster care. At the
subsequent jurisdiction and disposition hearing, HSA recommended that the court
take jurisdiction and bypass services for both parents pursuant to section
361.5, subdivisions (b)(4) and (b)(10), and for Father under subdivision
(b)(13). Following the trial on May 2,
2012, the court sustained all counts of the petitions, bypassed reunification
services to both parents and set a hearing for August 20, 2012, to decide
whether to terminate parental rights and approve a permanent plan of adoption. Mother and Father petition this court for an
extraordinary writ vacating the juvenile court's order and ordering family
reunification services.
DISCUSSION
When a juvenile court's
decision to bypass reunification is challenged, we apply the substantial
evidence rule. (In re Brooke C. (2005) 127 Cal.App.4th 377, 382.) "We review the record in the light most
favorable to the trial court's order to determine whether there is substantial
evidence from which a reasonable trier of fact could make the necessary findings
based on the clear and convincing
evidence standard." (
684, 694.) "Clear and convincing
evidence requires a high probability, such that the evidence is so clear as to
leave no substantial doubt." (
1412, 1426.)
Bypass
of Services to Parents Under Section 361.5, Subdivision (b)(4)
Section 300, subdivision
(f) provides that a minor may be adjudged a dependent of the juvenile court if
the juvenile court finds, by a preponderance of the evidence, that "[t]he
child's parent or guardian caused the death of another child through abuse or
neglect." Section 361.5,
subdivision (b)(4) permits the juvenile court to bypass family reunification
services if the court finds, by clear and convincing evidence, that "the
parent or guardian . . . has caused the death of another child through abuse or
neglect."
Parents contend that the
"abuse or neglect" contemplated by both sections must rise to the
degree of culpability encompassed within the concept of criminal negligence,
rather than the civil standard of neglect applied by the juvenile court. Shortly after the petitions were filed, our
Supreme Court held in In re Ethan C.
(2012) 54 Cal.4th 610, 627-637, that a finding of
under either section 300, subdivision (f) or section 361.5, subdivision
(b)(4). In supplemental briefing,
parents concede that In re Ethan C.
"has answered the question of the degree of negligence needed to sustain
an allegation under [these sections]," and that "the degree of
negligence can be a breach of ordinary care and need not amount to criminal
negligence." Accordingly, the
juvenile court applied the proper standard.
Parents further contend
that their acts and omissions were not a "direct" or "proximate
cause" of their child's death, and that section 300, subdivision (f) and
section 361.5, subdivision (b)(4) must be interpreted to include a heightened
criminal law standard of causation.
agreeing with In re A.M. (2010) 187
Cal.App.4th 1380, 1387, that a parent "causes" the death of a child
when the parent's conduct is a substantial contributing factor. (In re
Ethan C., supra, 54 Cal.4th at p. 640.)
The court explained that "[i]f the actor's wrongful conduct
operated concurrently with other contemporaneous forces to produce the harm, it
is a substantial factor, and thus a legal cause, if the injury, or its full
extent, would not have occurred but for that conduct." (Ibid.)
Parents acknowledge this
holding in Ethan C., but contend the
juvenile court did not find that their actions were a substantial factor
leading to the death of their child. We
disagree. On July 7, 2007, the juvenile
court found the following allegation to be true: "The inadequate supervision by the
parents and drug use by the father contributed to the death of the sibling and
this child [I.H.] is at substantial risk of serious physical harm." Substantial evidence supports the finding
that the wrongful conduct of both Mother and Father "operated concurrently
with other contemporaneous forces to produce the harm" to the child. (In re
Ethan C., supra, 54 Cal.4th at p. 640.)
The child's death
occurred because parents left two children under the age of two in a hazardous
environment without adequate supervision.
The living conditions in the trailer were "deplorable." The social worker reported "[t]here were
poopy diapers lying around and there were bugs and gnats. It was so bad it almost made me
puke." The trailer had no running
water and the toilet was filled with feces.
Father, who was asleep when L.H. fell into the five-gallon bucket and drowned,
admitted he had recently used crystal methamphetamine. At the bottom of the bucket, authorities
found a broken glass crack pipe that they suspect caused the lacerations on the
child's fingers. Mother left the
children alone with Father, even though she knew or should have known he was using
drugs. Sufficient evidence supports the
jurisdiction and bypass findings that parents "caused the death of another
child through abuse or neglect."
(§§ 300, subd. (f), 361.5, subd. (b)(4).)
Bypass
of Services to Mother Under Section 361.5, Subdivision (b)(10)
Section 361.5,
subdivision (b)(10) allows the juvenile court to deny reunification services if
the court previously ordered the termination of reunification services for a
sibling and the parent "has not subsequently made a reasonable effort to
treat the problems that led to removal of the sibling . . . ." Under these circumstances, providing
additional reunification services "may be fruitless." (In re
Gabriel K. (2012) 203 Cal.App.4th 188, 195.)
Mother contends the
substantial evidence does not support the bypass of services under this
subdivision. We disagree. Mother received over three years of
reunification and maintenance services, yet was unable to maintain safe living
conditions for her children. At the time
of the child's death in 2007, the home was both unsafe and unsanitary. The same was true in December 2011, when the
children were once again detained. The
home was filthy, with roaches and clutter.
Outside the trailer was a broken-up couch with protruding nails and
staples. Police found two of the
children, aged 2 and 6, wandering outside unsupervised. Father, who was under the influence of drugs,
was hostile and combative. Sufficient
evidence supports the juvenile court's finding that further reunification
services would be fruitless.
Bypass
of Services to Father Under Section 361.5, Subdivision (b)(13)
Section 361.5,
subdivision (b)(13) allows for bypass of reunification services if the juvenile
court finds "[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 described in the case plan required by Section 358.1 on at least two
prior occasions, even though the programs identified were available and
accessible." The statute reflects
"'a legislative determination that an attempt to facilitate reunification
between a parent and child generally is not in the minor's best interests when
the parent is shown to be a chronic abuser of drugs who has resisted prior
treatment for drug abuse.'
[Citation.]" (
1220, 1228.)
Father admits he has a
substance abuse history, but contends he does not have "an extensive,
abusive and chronic use of drugs."
This contention is not supported by the record. Father was arrested in 1994, 1995 and 2011
for being under the influence of drugs.
He acknowledged he began using cocaine at age 20 and started smoking
methamphetamine at age 27. He admitted
to using methamphetamine two days prior to his child's death in 2007, and that
he started using drugs daily after the death.
Father claimed he stopped using when he began attending ADP during the
first dependency, but he tested positive for alcohol or drugs several times
during that dependency. He also
acknowledged he was still using drugs during the second dependency,
notwithstanding substantial drug counseling and treatment. Father's on-going use of drugs for
approximately 16 years, combined with the arrests and failed treatment, support
the juvenile court's finding that bypass was appropriate under section 361.5,
subdivision (b)(13).
The
petitions for extraordinary writ are denied.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P.J.
YEGAN, J.
>
Ellen
Gay Conroy, Judge
Superior
Court County of Ventura
______________________________
Robert R. Garcia for
Petitioner I.A.
Carlos J. Najera for
Petitioner R.A.
No appearance for
Respondent.
Leroy Smith, County
Counsel, Alison L. Harris, Assistant County Counsel, for Real Party in
Interest.
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All further statutory references are to the
Welfare and Institutions Code.
