Filed 12/13/18 In re A.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
| In re A.R., a Person Coming Under the Juvenile Court Law.
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SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.G.,
Defendant and Appellant.
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E070343
(Super.Ct.No. J274533)
OPINION
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APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed in part, reversed in part, and remanded with directions.
Dennis G. Temko, by appointment of the Court of Appeal, for Defendant and Appellant.
Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.
J.G. (sometimes father) begat a child with a woman who was already in a long-standing relationship with another man. Due to the mother’s drug use and child welfare history, Children and Family Services (CFS) detained the child at birth and filed a dependency petition concerning her. At the time, the father was incarcerated, serving a sentence for second degree burglary; he was due to be released four months after the jurisdictional/dispositional hearing. Nevertheless, he appeared at all relevant hearings. He requested a paternity test, which showed that he was indeed the child’s father. He then requested reunification services, which the juvenile court denied.
We will hold that, because the evidence showed that reunification services were likely to overcome the father’s criminality and drug use, this was an abuse of discretion.
I
FACTUAL AND PROCEDURAL BACKGROUND
In January 2018, the mother gave birth to A.R. (sometimes child). Both of them tested positive for marijuana.
The mother admitted having used methamphetamine until about a year before becoming pregnant. She had four older children who had been removed from her custody, due to her use of methamphetamine. They had been adopted by Mr. and Mrs. R., who were their paternal grandparents.
A.R. had a different father, appellant J.G. He was incarcerated. In August 2017, he had pleaded guilty to second degree burglary; other pending charges were dismissed. He was sentenced to jail; his projected release date was in August 2018.
As a result, CFS detained A.R. and filed a dependency petition concerning her. She was placed with the R.’s (and thus with her older half-siblings).
At the detention hearing, the father indicated that he was not sure whether he was the father. He requested and received paternity testing, which confirmed his paternity.
The father and the mother had dated for four or five months; they had never lived together. He knew she had a history of drug use, but he encouraged her not to use drugs.
According to the father, his burglary conviction arose out of his use of methamphetamine. He had used methamphetamine “on and off” for a year and a half to two years, and then daily for six months, until his arrest in August 2017.
He had also been arrested (but not, as far as the record shows, convicted) in 2016 for grand theft, obstructing a peace officer, evading a peace officer, being under the influence of a controlled substance, possession of paraphernalia, shoplifting, possession of burglary tools, and unlawful taking of a vehicle; and in 2015 for selling marijuana and possession of a controlled substance.[1]
While the father was incarcerated, he tried to enroll in reunification services but could not because he was in protective custody.
In a report for the jurisdictional/dispositional hearing, CFS recommended that the father be denied reunification services “[d]ue to . . . not having a relationship with the child, . . . not being present at the child’s birth, and . . . [his] documented projected release date from incarceration being not until 8/3/18 . . . .”
In April 2018, at the jurisdictional/dispositional hearing, the juvenile court sustained jurisdiction based on failure to protect (Welf. & Inst. Code, § 300, subd. (b)) and abuse of a sibling (id., subd. (j)). Specifically, it found true allegations that:
1. “The mother . . . has a substance abuse history which negatively impacts her parenting ability, placing the child . . . at substantial risk of harm and neglect.”
2. “The father . . . has a substance abuse history which negatively impacts his parenting ability, placing the child . . . at substantial risk of harm and neglect.”
3. “The father . . . is incarcerated leaving the child . . . without provisions for support.”
Regarding reunification services, the father’s counsel argued, “[t]he only reason that it would not be in the best interest . . . is that he’s a substance abuser and has a criminal history. And neither of those stops people from being a perfectly decent and good father. [¶] . . . [¶]
“[H]is out date is . . . August 3rd, which . . . gives us almost two and a half months before the first six-month review. And assuming he got out and immediately got into a substance abuse program and was fully engaged at the time of the .21(f), well, that would be better than numerous of the parents we have who get involved at the last minute for no reason, and then we give them the .21(f) because they are now involved.
“ . . . He agrees that drugs have been his downfall. I’d like to think, and I do believe, that having his daughter has been a real eye opener for him, and that he is going to turn his life around.”
Minor’s counsel agreed that the father should be given reunification services.
Counsel for CFS argued that “there was no point when this child was in the womb that Father decided that he would become a better person because this could possibly be his child.” She added, “We’re recommending a supervised visits order upon Father’s release. Father can take it upon himself, because he has this ambition now to engage in services . . . .” “[W]e’ll gladly consider the 388 upon his release from custody, once he’s demonstrated that he’s taking those steps to be an active engaged parent . . . .”
The juvenile court ordered reunification services for the mother. However, it denied reunification services for the father; it ruled that services would not be in the best interest of the child. It explained:
“[T]here is no evidence that the father is anything but a biological father. At this point the analysis becomes whether or not it is in the minor’s best interest to offer services. . . .
“I am going to find that it is not in the best interest to offer the father services as the mere biological father. He is not a Kelsey S. father;[[2]] he knew that the mother was pregnant; he chose at that point, knowing that he could be the father, to not be involved before birth. . . . [H]e instead got himself incarcerated.
“He has a drug issue . . . . He is not in an ongoing committed relationship with the mother of the child. He is going to be incarcerated at least during part of the reunification period.
“And I think that County Counsel’s point is well taken that, upon release, if he demonstrates through good visits, through either an out-patient or in-patient treatment program, and that he can stay out of trouble, that the court would consider changing to give him services if that’s appropriate at the time that that all happens.” (Underscore altered to italics.)
The juvenile court did grant the father supervised visitation, upon his release, for a minimum of two hours once a month.
II
THE DENIAL OF REUNIFICATION SERVICES
The father contends that the juvenile court erred by denying him reunification services.
A. The Applicable Standard.
When it comes to reunification services, it makes a big difference whether a father is a presumed father or only a biological father.
The Family Code allows a person to qualify as a child’s “presumed parent” under certain specified circumstances. (Fam. Code, § 7611.) One of these is when “[t]he presumed parent and the child’s natural mother are or have been married to each other and the child is born during the marriage . . . .” (Id., subd. (a).) Another is when “[t]he presumed parent receives the child into his or her home and openly holds out the child as his or her natural child.” (Id., subd. (d).) It is undisputed that none of these circumstances exist here, and thus the father is not a presumed father — he is “a mere biological father.” (In re Zacharia D. (1993) 6 Cal.4th 435, 446, fn. 12.)
Whenever a child is removed from a parent’s custody, a mother and a presumed father are entitled to reunification services (Welf. & Inst. Code, § 361.5, subd. (a)),[3] unless the juvenile court finds, by clear and convincing evidence, that a statutory exception applies (id., subds. (b)(1)-(b)(17)).
By contrast, a biological father is not entitled to reunification services, unless the juvenile court “determines that the services will benefit the child.” (Welf. & Inst. Code, § 361.5, subd. (a); In re Zacharia D., supra, 6 Cal.4th at p. 451.) The biological father has the burden of proving the requisite benefit (Evid. Code, §§ 500, 550; cf. Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1124), by a preponderance of the evidence (Evid. Code, § 115).
“This distinction reflects a policy determination that it is generally in the best interests of the child to be reunited with his or her presumed father, but not necessarily with a mere biological father.” (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597.)
The decision to provide reunification services to a biological father is entrusted to the juvenile court’s discretion; accordingly, we review that decision under the abuse of discretion standard. (In re Elijah V. (2005) 127 Cal.App.4th 576, 589.)[4] “‘When applying the deferential abuse of discretion standard, “the trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.” [Citations.]’ [Citation.]” (In re Maya L. (2014) 232 Cal.App.4th 81, 102.)[5]
CFS argues, at some length, that the father is not entitled to reunification services because he is not a presumed father. This is beside the point. As he concedes, he is not absolutely entitled to them, as a matter of right; nevertheless, he may be entitled to them, if they would benefit the child.
CFS also argues that the father could not obtain reunification services unless and until he filed a petition under Welfare and Institutions Code section 388 (section 388) to elevate his status to presumed father. This is just another way of saying that only a presumed father is entitled to reunification services. (We also note that, as of the jurisdictional/dispositional hearing, there was no prior court order finding the father to be merely a biological father; thus, there was no reason to file a section 388 petition, which is used to change a prior court order.)
Cases deciding whether granting reunification services to a biological father will or will not “benefit” the child under Welfare and Institutions Code section 361.5, subdivision (a) are few and not very helpful here.
It seems clear that such services will not benefit the child when another man is already the child’s presumed father. (In re Elijah V., supra, 127 Cal.App.4th at p. 589.) They also will not benefit the child when the biological father is incarcerated, will continue to be incarcerated for several years, has no relationship with the child, and did not even seek to establish such a relationship until the child was five. (In re Joshua R.(2002) 104 Cal.App.4th 1020, 1026.)
On the other hand, even if the biological father is incarcerated, “‘[t]here is no ‘Go to jail, lose your child’ rule in California.’ [Citation.]” (In re O.S. (2002) 102 Cal.App.4th 1402, 1410.) At least when the biological father is due to be released during the dependency (see id. at p. 1405), and even if he has only “a limited relationship” with the child, the juvenile court has discretion to find that it is “in the child’s best interests to be with his biological father instead of in foster care. [Citation.]” (Id. at p. 1410.)
Similarly, when the biological father got involved in the dependency early and has “developed at least some connection” to the child, the juvenile court has discretion to find that providing him with reunification services will benefit the child. (In re J.H. (2011) 198 Cal.App.4th 635, 650.)
We find additional guidance in cases dealing with Welfare and Institutions Code section 361.5, subdivision (c). As mentioned above, even where a parent is presumptively entitled to reunification services, the juvenile court may deny them if a statutory exception applies. In dependency jargon, these exceptions are called “bypass” provisions. (E.g., Jennifer S. v. Superior Court, supra, 15 Cal.App.5th at p. 1121.) However, there is an exception to the exceptions — even when a bypass provision applies, the juvenile court has discretion to order reunification services if it finds, by clear and convincing evidence, that reunification is in the best interest of the child. (Welf. & Inst. Code, § 361.5, subd. (c)(2).)[6]
We see little difference, in practice, between the “benefit” standard of Welfare and Institutions Code section 361.5, subdivision (a) and the “best interest” standard of Welfare and Institutions Code section 361.5, subdivision (c)(2). They both require the juvenile court to weigh any likely benefit against any likely detriment and to decide which way the child will be better off on the whole. In both instances, the whole point of the exercise is to determine whether providing reunification services is likely to be worthwhile. Thus, courts sometimes use the word “benefit” when discussing the best interest test. (E.g., Jennifer S. v. Superior Court, supra, 15 Cal.App.5th at p. 1124; In re Lana S. (2012) 207 Cal.App.4th 94, 109.)[7]
“‘The concept of a child’s best 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.]’ [Citation.]
“The factors to consider include: ‘a parent’s current efforts and fitness as well as the parent’s history’; ‘[t]he gravity of the problem that led to the dependency’; the relative strength of the bonds between the children and the parents and between the children and the caretakers; and ‘the child[ren]’s need for stability and continuity.’ [Citation.]
“Further, ‘nder these circumstances, at least part of the best interest analysis must be a finding that further reunification services have a likelihood of success. In other words, there must be some “reasonable basis to conclude” that reunification is possible before services are offered to a parent who need not be provided them. [Citation.]’ [Citation.]” (In re Z.G., supra, 5 Cal.App.5th at p. 722.)
In the father’s view, this “elusive guideline” — when applied to a biological father — boils down to one single question: Are reunification services likely to enable the biological father to become a presumed father? Although not exactly wrong, this is an oversimplification.
Ordinarily, to become a presumed father after the child has been born, a biological father must “receive[] the child into his or her home and openly hold[] out the child as his or her natural child.” (Fam. Code, § 7611, subd. (d).)[8] After a dependency has been filed and the child has been removed, the only way this is even possible is if the juvenile court orders the child placed with the biological father. Thus, the question of whether a biological father is likely to become a presumed father depends on whether he is likely to be able to have the child placed with him and to develop a parental relationship with the child. (See W.S. v. S.T. (2018) 20 Cal.App.5th 132, 145 [“to receive a child into his or her home, a parent must ‘demonstrate a parental relationship, however imperfect.’ [Citation.]”].) This, in turn, depends on all of the factors already mentioned as relevant to the child’s best interest. Thus, it remains a totality-of-the-circumstances test.
B. The Standard as Applied to the Father.
“It is the policy of the Legislature that . . . reunification with the natural parent . . . is more suitable to a child’s well-being than is foster care . . . .” (Welf. & Inst. Code, § 396.) As the use of the term “natural parent” demonstrates, this policy is not limited to presumed parents. Thus, absent a countervailing showing of detriment, placement with a biological father rather than in foster care is, in itself, a benefit to the child.
As the father’s counsel noted below, the father had two barriers to parenting: drug abuse and a history of criminality.
His drug abuse, however, was by no means entrenched. He was not in denial; he was straightforward about his drug abuse. He had used methamphetamine for two or two and a half years, including six months during which he used it daily. However, he had had to stop using it during his time in jail. He had not had — and thus he had not failed — any prior drug treatment. CFS argues that he “failed to seek any in-custody services addressing his drug abuse . . . .” The record shows, however, that did try to enroll in services while in jail but could not because he was in protective custody.
Meanwhile, he asserted that his criminality arose out of his drug use. This was substantiated by the fact that it all occurred in 2015 and 2016, when he was using methamphetamine, and by the fact that his string of arrests included controlled substance offenses. His record was clean until he started using methamphetamine around the age of 27. Thus, there was reason to believe that drug treatment would also eliminate his criminality.
The father stepped forward at the very beginning of the dependency. He appeared at all hearings (other than the first, when his whereabouts were still unknown). Once he was sure of his paternity, he sought reunification services. Clearly he was motivated. Accordingly, it appeared that drug treatment, as an element of reunification services, could remove his barriers to parenting. Certainly the trial court did not find that providing reunification services would be detrimental to the child.
The juvenile court did discuss the fact that the father was not involved in mother’s pregnancy. Its point seems to have been that he was a biological father, rather than a presumed or Kelsey S. father, and therefore he had to prove benefit to the child. If so, we agree.[9] CFS, however, repeatedly cites this fact as evidence that the father is not genuinely committed to parenthood, and thus reunification services would be wasted on him.
The father, however, was incarcerated for all but the first four months or so of the pregnancy. And during the pregnancy, he was not sure of his paternity. He explained that “he doubted the child was his because of [the mother] possibly being involved with another man simultaneously.” The evidence showed that this doubt was well-founded. The mother had four older children by a different father. When she was pregnant with A.R., she was still involved with the other man and expected to marry him. She identified him as the father of A.R. before changing her mind and identifying the father instead. She even gave A.R. his last name and a female version of his first name.
It is true that, when the dependency was filed, the other man was incarcerated. However, the record does not show that the other man was incarcerated when the child was conceived. Most important, it does not show that the father knew the other man was incarcerated when the child was conceived.
Thus, the father would reasonably conclude that, while it was possible that he was the child’s father, it was much more likely that the other man was. (Cf. In re D.A. (2012) 204 Cal.App.4th 811, 825-826 [father’s initial doubts about his paternity did not prevent him from being a Kelsey S. father].) On this record, his lack of involvement in the mother’s pregnancy does not show a lack of commitment to the child.
Admittedly, as of the jurisdictional/dispositional hearing, the father had no existing relationship with the child. At the same time, however, there was no evidence before the juvenile court regarding the foster parents’ relationship with the child. While they had adopted the child’s older half-siblings, there was no evidence that they wanted to adopt the child. Even if it had been shown that her placement with the foster parents was in some way better for her than a placement with the father, it would still be a benefit to the child, at this early stage, to have an alternative placement available.
It is also significant that minor’s counsel endorsed the father’s bid for reunification services. Minor’s counsel is charged with representing the child’s interests and has a duty to investigate the facts. (Welf. & Inst. Code, § 317, subd. (e)(1).) “[C]ounsel is required to make a factual investigation and may ‘make recommendations to the court concerning the child’s welfare . . . .’ [Citation.]” (In re Kristen B. (2008) 163 Cal.App.4th 1535, 1541.) We do not mean to say that the arguments of counsel are a substitute for evidence, nor do we mean to say that the juvenile court was required to accept minor’s counsel’s opinion. However, his opinion is consistent with our analysis.
We therefore conclude that the juvenile court abused its discretion by denying reunification services for the father.
III
DISPOSITION
The order appealed from is reversed, to the extent that it orders that the father not be provided with reunification services; in all other respects, it is affirmed. On remand, the juvenile court must order that the father be provided with reunification services. This disposition is without prejudice to CFS filing a section 388 petition seeking to terminate reunification services for the father based on changed circumstances.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
[u]RAMIREZ
P. J.
We concur:
MILLER
J.
RAPHAEL
J.
[1] According to the social worker’s report, the father had also been arrested for willful cruelty to a child. The attached police report, however, showed that this was not true. Rather, the person arrested for cruelty to a child was his then-girlfriend.
According to the report, the police went to a motel room at 4:00 a.m. The girlfriend’s brother was inside. The father, his girlfriend, and the girlfriend’s three children were also there but asleep. There were used meth pipes in the room; all three adults appeared to be under the influence of methamphetamine.
The father denied smoking methamphetamine in the motel room (i.e., in the presence of the children). He claimed that he had been out from noon until 8:30 p.m.; he admitted using methamphetamine while he was out. He came back to find “a small amount of methamphetamine smoke inside the motel room.” However, the girlfriend’s brother did admit that he smoked methamphetamine in the motel room.
In sum, then, there was no substantial evidence that the father committed willful cruelty to a child.
[2] Adoption of Kelsey S. (1992) 1 Cal.4th 816 [unwed father who has been prevented from becoming a presumed father but who has sufficiently and timely demonstrated a full commitment to his parental responsibilities has a right, as a matter of equal protection, to be treated as a presumed father].
[3] Welfare and Institutions Code section 361.5, subdivision (a), speaks in terms of “child welfare services.” The remainder of the section refers variously to “reunification services,” “court-ordered services,” “court-ordered reunification services,” “services provided as part of the child welfare services case plan,” and just plain “services.”
The father points out that Welfare and Institutions Code section 16501 defines both “child welfare services” and “reunification services”; moreover, it defines them somewhat differently, so that “child welfare services” is a more expansive term that includes but is not limited to “reunification services.” (Id., subds. (a), (h).)
It is not entirely clear what his point is. In any event, both of the definitions that he cites apply only “[a]s used in this chapter” — i.e., in Welfare and Institutions Code section 16500 et seq. (Ibid.) Hence, they do not govern the construction of Welfare and Institutions Code section 361.5.
In general, “child welfare services” comprise (1) emergency response services, before a case has been filed; (2) maintenance services, when the child has not been removed; (3) reunification services, when the child has been removed; and (4) permanent placement services, when reunification services have been bypassed or terminated. (Cal. Juvenile Dependency Practice (Cont.Ed.Bar 2018) § 2.10, p. 48.) However, as Welfare and Institutions Code section 361.5 applies only when the child has been removed, “child welfare services” and “reunification services,” as used in that section, are essentially synonymous.
[4] As we will discuss in more detail below, a finding that reunification services will benefit the child under Welfare and Institutions Code section 361.5, subdivision (a) is analogous to a finding that reunification services are in the best interest of the child under Welfare and Institutions Code section 361.5, subdivision (c). Most courts have held that the latter finding is similarly reviewed under the abuse of discretion standard. (Jennifer S. v. Superior Court, supra, 15 Cal.App.5th at pp. 1124-1125; In re Z.G. (2016) 5 Cal.App.5th 705, 724; In re G.L. (2014) 222 Cal.App.4th 1153, 1164-1165; In re A.G. (2012) 207 Cal.App.4th 276, 283; In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 [semble]; In re William B. (2008) 163 Cal.App.4th 1220, 1229; In re Angelique C. (2003) 113 Cal.App.4th 509, 523-524; but see In re A.M. (2013) 217 Cal.App.4th 1067, 1077-1078; In re Harmony B. (2005) 125 Cal.App.4th 831, 839-840, 843.)
[5] Because a decision that is not supported by substantial evidence is necessarily an abuse of discretion, the choice as between these two standards of review will rarely, if ever, affect the analysis or the outcome. (In re Donovan L. (2016) 244 Cal.App.4th 1075, 1088; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
[6] This generalization is true of most, but not all bypass provisions. (Welf. & Inst. Code, § 361.5, subd. (c)(2).) In other words, there are exceptions to the exceptions to the exception.
[7] Curiously, the father urges us to adopt the “best interest” standard developed in cases applying Welfare and Institutions Code section 361.5, subdivision (c)(2). He then undercuts his own argument by dropping a footnote in which he bashes the juvenile court for using the words “best interest” and argues that this is a different and more demanding standard than “benefit.” We agree with his initial argument and disagree with his footnote.
[8] The only alternative is to marry the mother and to promise in writing (or be ordered by a court) to support the child. (Fam. Code, § 7611, subd. (c).) Needless to say, this is not the usual route to presumed father status.
[9] In explaining why it was denying reunification services, the juvenile court said, among other things, “He is not in an ongoing committed relationship with the mother of the child.” The father argues that this was irrelevant and the juvenile court abused its discretion by considering it. The father’s counsel, however, had just argued that reunification services would allow the child “to have a two-parent family.” The juvenile court could appropriately point out that this was not a realistic possibility. It may also have been returning to the point it had made earlier — that the father did not qualify as either a presumed or Kelsey S. father.
