In re F.K.
Filed 7/2/12
In re F.K. 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NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 F. K., a
Person Coming Under the Juvenile Court Law.
SAN JOAQUIN
COUNTY HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
F. K., SR.,
Defendant and Appellant.
C069577
(Super. Ct. No. J05625)
F.
K., Sr., the father of the minor F. K., appeals from the juvenile court’s
dispositional orders denying reunification
services. (Welf. & Inst. Code,
reunification services was an abuse of discretion. We affirm.
BACKGROUND
F.
K. was born in June 1996. He lived with
father, who had raised him on his own since the age of two. Father has 1984 convictions for
copulation of a child under 14 years old, robbery, and a 1998 misdemeanor
conviction for making criminal threats.
In December 2010, father was arrested on charges of first degree
robbery, criminal threats, burglary, petty theft with a prior theft conviction,
and felon in possession of a firearm.
The 14-year-old minor was left home by himself as father had no one who
could care for him. There was no food in
the home other than a package of ramen and two eggs. The minor was placed in protective custody by
Children’s Protective Services.
In
January 2011, the
County Human Services Agency (agency) filed a dependency petition alleging
jurisdiction over the minor pursuant to section 300, subdivisions (b) (failure
to protect) and (g) (no provision for support).
The minor was released to mother’s custody shortly thereafter.
The
minor told a social worker that father is very nice to him and he would not
change a thing. Father takes Xanax to
calm down and is easily irritated if he does not take it.
In
a tearful interview at the county jail, father reported that he needed a gun
after being robbed at gunpoint two months earlier. Father went to the Big 5 in Lodi and asked to
see a gun; he then took the one the clerk showed him and ran off. He had stopped taking Xanax at the time of
the robbery because he runs out of it at the end of the month. He is addicted to the drug, and his behavior
changes when he stops taking it.
Father
told the social worker his son was everything to him. Due to mother’s neglect and abuse, father has
raised the minor by himself since he was two.
Since he gets only $115 a month in food stamps, father runs low on food
by the end of the month. He gets cash
aid and SSI, but not enough to cover rent and other items.
The
March 2011 jurisdiction and disposition report noted the minor did not attend
school regularly while living with father and had a .250 grade point
average. The social worker requested
victim witness funding for the minor to get counseling to address the
growing up in an environment of severe deprivation.
While
mother had a history of substance abuse and child neglect, she was maintaining
a clean home full of children from her current marriage. The report recommended awarding custody to
mother and dismissing the dependency.
Police
reports from father’s charged offenses were appended to the jurisdiction and
disposition report. According to two Big
5 employees, father entered the store and asked to see shotgun ammunition. When that was produced, father then asked to
see a shotgun. Father took a shotgun and
a gun case and left the store. A store
manager confronted father in the parking lot; father told the manager he was
going to load the shotgun and kill him if he did not stop following him. Father then got into a pickup truck and
looked like he was loading the shotgun.
After police apprehended him, father admitted taking the gun.
The
juvenile court sustained the petition in April 2011. A May 2011 supplemental report related that
mother and her husband had completed various programs mandated by the criminal
courts and appeared to have turned around their lives. The report recommended mother and her husband
retain custody with family maintenance services. The social worker advised no services for
father due to the length of his impending incarceration, his tendency to commit
violent crimes, and the minor’s age.
In
July 2011, the agency filed a supplemental petition (§ 387) seeking the minor’s
removal from mother, alleging that his grades had dropped to all F’s and mother
and her husband tested positive for methamphetamine. Father and mother submitted to jurisdiction
and mother waived reunification services.
The juvenile court sustained the supplemental petition and set a
contested dispositional hearing for father.
Christopher
Holden, an agency intake social worker, testified at the hearing. He recommended denying services because
father was in custody, but admitted father’s trial had not yet taken
place. Holden was troubled by father’s
criminal charges, his failure to provide for the minor, and father’s pattern of
behavior.
The
minor told Holden he supported reunification services for father. He believed the minor understood what
services were and why they were needed in a dependency action. The minor visited father four times in
jail. The visits were “good†and the
minor reacted well.
The minor’s permanent plan was for long-term
foster care. Visits should continue
because the minor appeared to enjoy them.
The minor would not be harmed by denying services because he was likely
to be 18 by the time father was released from custody.
The
minor testified that his visits with father in jail were “good.†He wanted to continue with visits and wanted
the agency to provide “classes†to father.
If father were out of custody tomorrow, minor would like to live with
him.
The
juvenile court bypassed reunification
services pursuant to section 361.5, subdivisions (e)(1) and (b)(12). In support of its ruling, the juvenile court
found that father was facing a potentially lengthy incarceration. While the minor clearly loved his father,
reunification services were not in the minor’s best interests because it would
give the minor false hope. The court
also noted this was not an “adoption case,†and father could file a petition to
modify (§ 388) if he prevailed in his criminal case.
DISCUSSION
Father
contends the juvenile court erred in bypassing reunification services pursuant
to section 361.5, subdivisions (e)(1) and (b)(12). We disagree.
The
juvenile court may deny a parent reunification services under certain
circumstances. (§ 361.5, subd.
(b).) One of those circumstances is
where the parent has been convicted of a violent felony. (Id.,
subd. (b)(12).) In such a case, the
court may not order services unless it finds, by clear and convincing evidence,
that reunification is in the best interests of the minor. (Id.,
subd. (c).)
Father
admits that subdivision (b)(12) applies to him because of his convictions for
felonies. (Pen. Code, § 667.5, subd.
(c)(3), (c)(9).) He argues that it was
an abuse of discretion to deny services because services were in the minor’s
best interests.
We
review the denial of services under section 361.5, subdivision (c) for abuse of
discretion. (In re Angelique C. (2003) 113 Cal.App.4th 509, 523-524.) “Once it is determined one of the situations
outlined in [section 361.5,] subdivision (b) applies, the general rule favoring
reunification is replaced by a legislative assumption that offering services
would be an unwise use of governmental resources. [Citation.]â€
(In re Baby Boy H. (1998) 63
Cal.App.4th 470, 478.) “The burden is on
the parent to change that assumption and show that reunification would serve
the best interests of the child.†(
1220, 1227.)
“The
purpose of imposing a ‘best interest of the child’ standard ‘“is to maximize a
child’s opportunity to develop into a stable, well-adjusted adult.â€â€™ [Citation.]
Appropriate factors for the juvenile court to consider when determining
whether a child’s best interest will be served by pursuing reunification
include: (1) the ‘parent’s current
efforts and fitness as well as the parent’s history’; (2) ‘[t]he gravity of the
problem that led to the dependency’; (3) ‘[t]he “strength of relative bonds
between†the dependent child and “both
parent and caretakersâ€â€™; and, ‘[o]f paramount concern[;]’ (4) ‘the child’s need
for stability and continuity.’
[Citation.]†(
547, italics omitted.)
Father
was facing the strong possibility of a lengthy prison term. He was charged with two serious or violent
felonies, criminal threats and robbery, plus two additional felony charges. His criminal record includes two violent
felony convictions, potentially subjecting him to a three strikes sentence of
25 years to life in state prison. The
police reports identify two witnesses to the charged offenses, and father
apparently confessed to the police that he stole the shotgun. Although father was not yet convicted of the
charged crimes, it was proper for the juvenile court to consider the very real
possibility of his being subject to significant incarceration.
While
father and the minor loved one another, ordering services at this time was not
in the minor’s best interests. Given the
minor’s age and the likelihood that father would be subject to lengthy
incarceration, reunification services at this point ran the risk of harming the
minor by giving him a sense of false hope.
The
juvenile court’s order does not threaten the minor’s relationship with his
father. The court noted that if father
was successful in his criminal case he could seek services through a petition
to modify (§ 388). Termination of
parental rights was not part of the agency’s plan, and the juvenile court
favored continued visitation during father’s incarceration. It was not an abuse of discretion for the
juvenile court to conclude that father did not carry his burden of showing that
reunification services were in the minor’s best interests.
Since
the juvenile court did not err in bypassing services pursuant to section 361.5,
subdivision (b)(12), we do not consider father’s contentions regarding section
361.5, subdivision (e). (In re Jasmine C.
(1999) 70 Cal.App.4th 71, 76 [if the juvenile court properly denied
services on any ground raised below, appellate court need not consider whether
other grounds relied on by the court are also supported].)
DISPOSITION
The
juvenile court’s dispositional orders are affirmed.
ROBIE , Acting P. J.
We concur:
BUTZ , J.
MURRAY , J.
name="_ftn1" title="">[1] Undesignated statutory
references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Mother previously was
restricted to supervised visitation with the minor and had a substantiated
allegation of neglect against the minor’s half sibling. She is not a party to this appeal.
