In re Destiny W.
Filed 2/7/12 In re
Destiny W. Ca3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(San
Joaquin)
----
In re Destiny W., a Person
Coming Under the Juvenile Court Law.
SAN JOAQUIN COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
Darlene W.,
Defendant and Appellant.
C068122
(Super.
Ct. No. J05522)
Darlene W., mother of the minor (mother),
appeals from the judgment of disposition denying her services. (Welf. & Inst. Code, §§ 358, 360,
395.)
provisions of section 361.5, subdivisions (b)(10) and (11), to deny
her services. Based upon a previous
unpublished decision by this court in case No. C068124, which decided the
identical issues in mother’s favor, when ruling on a petition for
to the minor’s half sibling, the San Joaquin County Human Services Agency
(Agency) concedes the judgment must be reversed and the case remanded to the
juvenile court for further hearing.
name="_ftnref2" title="">[2] We shall accept the concession as the
necessary outcome of our previous ruling, reverse the judgment of disposition
and remand for further hearing.
FACTS
The Agency filed a non-detaining petition
in August 2010 as to the two-year-old minor and her infant sister based on an
incident of domestic violence.
violence from 2006 to the present, which she had not addressed although
provided voluntary services. Mother also
had a substance abuse history that had resulted in the removal of three older
children with whom she failed to reunify.
Parental rights were terminated as to two of the three older
children. The petition in the current
case did not allege the minor and her sister were at risk of harm due to
mother’s substance abuse.
The juvenile court sustained the petition
in September 2010. At the dispositional
hearing, the court denied services to mother pursuant to section 361.5,
subdivisions (b)(10) and (11), based on her long history of untreated
domestic violence, but ordered reunification
services for the minor’s father.
DISCUSSION
Mother contends the court erroneously
applied section 361.5, subdivisions (b)(10) and (11), to deny her
services.
opinion in D.W. v. Superior Court, supra,
C068124.
“The two
subdivisions permit the juvenile court to bypass services to a parent who has
either failed to reunify or has had parental rights terminated as to a sibling
or half sibling of the minor and who ‘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 the parent.’
(§ 361.5, subds. (b)(10) & (11).)
“[Mother] does not
challenge the first condition of each statute since the evidence clearly shows
she failed to reunify with the three older children and her parental rights
were terminated as to two of them. The
second condition however, presents a different question.
“The problem that
led to removal in the prior dependency was cocaine abuse. There is no evidence domestic violence played
any part in the removal of any of the three older children. While the current petitions allege past
substance abuse, they contain no allegations of current substance abuse and the
social worker testified there were no such allegations. Moreover, there is no evidence of current
substance abuse. [Mother] testified she
had not used cocaine for years. There
was some evidence of use of alcohol but there was no evidence of any positive
tests for controlled substances. The
evidence supports the conclusion that [mother] has, in fact, made a reasonable
effort to treat the problem, i.e., substance abuse, that led to the removal of the
siblings.
“It is clear that
[mother] has not made efforts to address her domestic violence issues. However, according to the evidence, domestic
violence was not a problem that led to removal of the siblings in the prior
dependencies, and thus, [mother]’s failure to remedy that problem cannot be
used as a basis for bypassing services in the current cases. (§ 361.5, subds. (b)(10) &
(11); In re Albert T. (2006)
144 Cal.App.4th 207, 220 [current case based on domestic violence;
however, in prior case, sibling was removed only due to parental inability to
provide care for him, allegations of domestic violence having been dismissed
from the petition].) The language of the
statute itself makes it clear that only when ‘the problems that led to the
removal’ of the sibling are untreated can bypass of services be considered
under section 361.5 subdivision (b)(10) or (11). The juvenile court erred in applying the
bypass provisions to [mother] to deny her services. The court must conduct a new disposition
hearing to consider whether [mother] is entitled to services.†(D.W.
v. Superior Court, supra, C068124.)
The Agency
concedes domestic violence was not the problem that led to removal in the prior
dependency and that mother’s prior substance abuse cannot be a basis for denial
of services. We accept the concession.
DISPOSITION
The judgment of
disposition is reversed insofar as it denies reunification services to Darlene
W. with the minor. The case is remanded
to the juvenile court for a new disposition hearing to consider whether
reunification services should be provided to Darlene W. with the minor.
HOCH , J.
We concur:
BLEASE , Acting P. J.
BUTZ , J.
name="_ftn1" title="">[1] Undesignated statutory references are to the
Welfare and Institutions Code.
name="_ftn2" title="">[2] The court denied services for both mother and
the father of the infant half sibling and mother filed a petition for
extraordinary writ as to that half sibling which became D.W. v. Superior Court (Aug. 5, 2011, C068124 [nonpub. opn.]).
