In re Joe B.
Filed 9/23/13 In re Joe B. CA2/7
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SEVEN
In re JOE B., A Person Coming
Under the Juvenile Court Law.
B245715
(Los Angeles
County
LOS ANGELES
COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
CHRISTOPHER
B.,
Defendant and Appellant.
Super. Ct.
No. KC59707)
APPEAL from
a judgment of the Superior Court
of
County, Amy Pellman, Judge.
Affirmed.
Aida Aslanian, under appointment by
the Court of Appeal for Defendant and Appellant.
John F. Krattli, Acting County
Counsel, James M. Owens, Assistant County
Counsel, and Tracey F. Dodds,
Deputy County Counsel, for Plaintiff and Respondent.
_______________________
Appellant
Christopher B. (“Fatherâ€), the presumed father of minor Joe B., appeals from
the juvenile court’s jurisdiction and disposition orders declaring Joe a
dependent of the court pursuant to Welfare and Institutions Code
denying reunification services to
Father pursuant to section 361.5, subdivision (b)(11). As to the jurisdiction order, Father argues
that the evidence was insufficient to support the juvenile court’s finding that
Father’s prior sexual and physical abuse of his stepdaughter and daughter
placed Joe at substantial risk of harm.
As to the disposition order, Father asserts that the juvenile court
prejudicially erred in refusing to grant his request for a 30-day continuance
of the disposition hearing, and in finding that Father had failed to make
reasonable efforts to treat the problems that led to the prior removal of Joe’s
half-siblings. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Juvenile
Dependency History
Joe, born in July 2012, is the one-year-old
son of Father and Veronica L. (Mother).
Mother was a former dependent of the juvenile court, and following her
emancipation from the dependency system, she transferred to Regional Center
services and housing.
name="_ftnref2" title="">[2] Father has two children -- P.B. (a daughter
born May 1993) and A.B. (a son born March 1996) -- from a prior relationship
with Tracey P. Father also has three
children -- T.B. (born September 2008), J.B. (born June 2010), and M.B. (born
November 2011) -- from a current relationship with Eva H.
The 1999 Case. In June 1997, Father’s two children with
Tracey -- P.B. and A.B. -- were removed from the custody of their parents
following a failed voluntary family maintenance plan. In July 1999, the juvenile court declared
P.B., A.B., and Father’s stepdaughter, Desiree P. (born December 1985)
dependents of the court pursuant to section 300, subdivisions (a), (b), (c),
(d), (g), (i), and (j). In sustaining
the dependency petition, the juvenile
court found that, starting in December 1995, Father had sexually abused Desiree
by forcefully penetrating the child’s vagina with his penis, digitally
penetrating the child’s vagina with his fingers, forcing the child to sit on
his penis, and watching the child while she was naked. The sexual abuse of Desiree occurred on a
weekly basis until the child’s removal from the home in June 1997. The juvenile court further found that Father
had physically abused P.B. by striking and hitting the child’s body with a belt,
and had sexually abused P.B. by fondling the child’s vagina. Father was ordered to complete parenting
education, domestic violence counseling, individual counseling to address anger
management issues, and sexual abuse counseling.
Father failed to reunify with P.B. and A.B., however, and his parental
rights over both children were terminated in December 2002. P.B. and A.B. each received permanent
placement services with P.B. entering into a legal guardianship in October 2004
and A.B. entering into an adoption in December 2004.
The 2010 Case. In July 2010, a second dependency case was
filed on behalf of Father’s two eldest children with Eva -- T.B. and J.B.
T.B. and J.B. dependents of the court pursuant to section 300, subdivisions (b)
and (d). In the sustained petition, the
juvenile court found that Father’s prior sexual abuse of his stepdaughter,
Desiree, endangered the health and safety of T.B. and J.B. and placed them at
risk of physical and emotional harm and sexual abuse. T.B. and J.B. were placed in the home of
their mother, Eva, on the condition that Father not reside in the home. Father was ordered to complete parenting
education, individual counseling, and sexual abuse counseling for perpetrators. As of mid-2012, however, Father had not
complied with his court-ordered services and the 2010 case remained open.
II.
Initiation of the Current Dependency Proceedings
The current matter came to the
attention of the Los Angeles County Department of Children and Family Services
(DCFS) on July 19, 2012 based on a referral alleging that Mother had given
birth to Joe on July 16, 2012, but appeared to be unable to care for the child
because she was developmentally disabled.
It was reported that Mother previously had been receiving Regional
Center services, but her services had been terminated for an unknown
reason. It was also reported that Mother
was found to have lice and flea bites when she was admitted to the hospital for
Joe’s delivery. Joe remained in the
hospital for about a week following his birth while receiving treatment for an
infection, but he had no other known medical issues.
On July 24, 2012, the case social
worker had a telephone conversation with Mother who stated that she had been
friends with Father and Eva for about five years, and had been living with
Father in a recreational vehicle (RV) at a residence in Carson prior to Joe’s
birth. Mother believed that Father and
Eva were using her to take her social security disability insurance and other
government assistance. Mother also
reported that Father would deny her access to the RV at times and recently had
threatened to beat her. Although Mother
had identified Father as Joe’s biological father on the child’s birth
certificate, she claimed that they merely were friends and never had a sexual
relationship. She told the case social
worker that she wanted Joe placed in temporary foster care until she could
obtain stable housing and other services.
Mother’s obstetrician was assisting Mother in getting her Regional
Center services reinstated.
The case social worker also spoke
with Father over the telephone and requested a visit with him at his home. Father and Eva had visited Joe in the
hospital, and Eva had indicated that they intended to take the baby home upon
his discharge. Father was unwilling to
schedule a visit with the DCFS, however, and stated that he worked and was
busy. He reported that he did not live
with Mother or in an RV, but rather lived inside the Carson home. He also denied that he was dating Eva or had
any children with her, and claimed that Eva was his sister. Eva likewise told the case social worker that
she was Father’s half-sister and that they both lived in the Carson home. When asked about his availability to take
custody of Joe upon his release from the hospital, Father would not agree to
assume responsibility for the child. He
advised the case social worker to “[j]ust put my kid in the system because I’m
tired of all this.â€
On July 30,
2012, the DCFS filed a dependency petition on behalf of Joe under section 300,
subdivision (b) alleging that Mother’s developmental delays rendered her unable
to provide care and supervision of the child and placed him at substantial risk
of harm. At the July 30, 2012 detention
hearing, the juvenile court ordered that Joe be detained from Mother and Father
and placed in foster care subject to the DCFS’s supervision. The court ordered a paternity test for Father
and granted both parents monitored visitation.
The matter was set for a pretrial resolution conference on
August 30, 2012 and a jurisdiction hearing on September 20, 2012.
III.
First Amended Section 300 Petition
On August 30, 2012, the DCFS filed
a first amended dependency petition on behalf of Joe under section 300,
subdivisions (b) and (j). The amended
petition added an allegation that two of Father’s children, P.B. and A.B., had
been declared dependents of the juvenile court based on jurisdictional findings
of sexual abuse, physical abuse, and general neglect, and that Father had
failed to comply with court-ordered services and to reunify with the
children. It was further alleged that
such conduct by Father endangered Joe’s physical and emotional health and
placed him at substantial risk of serious harm. In the notice of the hearing on the amended
petition, the DCFS stated that it was recommending family reunification
services be provided to Mother, but not to Father, pursuant to section 361.5,
subdivision (b). At the August 30, 2012
hearing, both Father and Mother denied the allegations in the amended petition,
and the juvenile court ordered that Joe remain detained in foster care. The matter was continued for a pretrial
resolution conference on September 20, 2012 and a jurisdiction hearing on
October 16, 2012.
IV.
Jurisdiction/Disposition Report and Supplemental
Reports
On August 28, 2012, the DCFS
submitted its Jurisdiction/Disposition Report.
The paternity test results showed that Father was Joe’s biological
father. The DCFS had attempted to
contact Father both in writing and over the telephone, but he had not responded
to the agency’s requests for an interview.
The DCFS’s investigation revealed that Father had a criminal record
which included prior convictions for battery and corporal injury to a spouse. It also had been reported that both Mother and
Father had developmental delays and were receiving social security disability
insurance.
In her interview with the DCFS,
Mother stated that she did not have any familial support to assist her in
caring for Joe and she was concerned that others were only interested in taking
her money. She related that Father had
sent her to stay on Skid Row when the RV was being repaired and she was
pregnant with Joe, which had led to her getting lice. Mother further confirmed that Father was not
allowed to have unsupervised contact with his and Eva’s children, and as a
result, Father lived in the RV parked outside the paternal grandmother’s Carson
home while Eva and the children lived inside the home. Mother recently had moved into her own
apartment and was supporting herself with her social security disability
insurance. She also was receiving
Regional Center services, including individualized parenting instruction for
special needs parents. Because she had
obtained her own housing, Mother wanted Joe returned to her care.
Mother had attended four visits
with Joe, and Father had attended only one visit. According to the foster mother who monitored
the visits, Mother had to be told how to hold, feed, and change the baby, and
how to interact with him. During one
visit, Mother reportedly told the foster mother that she could not wait to get
Joe home because she was buying videos for him and asked what types of videos
he liked to watch. Mother’s case worker
through the Regional Center explained that Mother was learning the basics of
caring for a baby and was attentive and eager to learn. The case worker believed Mother had the
capacity to take care of Joe, but she would need many additional hours of
parenting instruction, including supervised overnight visits. Mother’s obstetrician agreed that Mother was
motivated to parent Joe and wanted to be part of his life, but she would need a
strong support system such as an assisted living facility that could
accommodate both her and the baby. The
obstetrician reported that, before Joe’s birth, Father had been managing
Mother’s social security disability funds and giving her only $100 of her $845
monthly payments. The obstetrician had
helped Mother move into a temporary shelter after Father had threatened
her.
In its Jurisdiction/Disposition
Report, the DCFS recommended that Joe be declared a dependent of the juvenile
court based on Mother’s developmental delays which the agency believed could
impede her ability to safely parent Joe, and on Father’s history of sexual and
physical abuse which had led to the removal of his other children. The DCFS recommended that Mother be provided
with family reunification services, including hands-on parenting education for
special needs parents, continued Regional Center services, and increased
visitation with Joe. The DCFS
recommended, however, that Father not be provided with family reunification
services pursuant to section 361.5, subdivisions (b)(6), (b)(10) and (b)(11)
based on his failure to reunify with P.B. and A.B. and the subsequent
termination of his parental rights over those children.
In a September 20, 2012
supplemental report, the DCFS informed the juvenile court that it had been
scheduled to interview Father on September 14, 2012. However, on the day of the interview, Eva
contacted the dependency investigator to report that Father had to be
hospitalized because of an allergic reaction.
The investigator had requested that the interview be rescheduled, but
Father had not responded to the request.
At the September 20, 2012 pretrial resolution conference, the juvenile
court continued the matter for a further conference on October 16, 2012 and
ordered that the DCFS prepare a supplemental report following its interview
with Father. The jurisdiction hearing
was continued to October 31, 2012.
In an October 16, 2012 interim
review report, the DCFS stated that the interview with Father had been
rescheduled for October 9, 2012 at the agency’s office. However, Father did not attend that
appointment and instead called the dependency investigator to question why he
needed to be interviewed at all. Father
also claimed that he missed the last appointment because Eva was in the
hospital for their baby, which was inconsistent with Eva’s claim that Father
was in the hospital for an allergic reaction.
When the investigator proposed that the interview be rescheduled for the
morning of October 11, Father responded that he “doesn’t rise early for
nothing.†Father continued to be
argumentative with the investigator and refused to reschedule the interview for
a mutually-convenient time. The case
social worker for the 2010 case involving Father’s children with Eva similarly
reported that Father had only made himself available to meet with her on one
occasion, and that the matter was set for a further review hearing because Eva
had stated she would move back in with Father once the case was closed. The DCFS continued to recommend that Father
not be offered reunification services under section 361.5, subdivision
(b). At the October 16, 2012 pretrial
resolution conference, the matter was continued for a contested hearing on
October 31, 2012. The DCFS was ordered
to make another attempt to interview Father.
In an October 31, 2012 supplemental
report, the DCFS informed the juvenile court that it had interviewed Father on
October 26, 2012. During the interview,
Father denied the prior allegations that he had sexually and physically abused
his stepdaughter and daughter. He
claimed that his stepdaughter’s family had forced her to lie about the abuse,
and he maintained that he never touched the child in a sexually inappropriate
manner. He also denied that the juvenile
court in the 1999 case had found the allegations of sexual and physical abuse
to be true. In addition, Father insisted
that he had not taken advantage of Mother’s developmental disabilities and
instead had tried to help her by providing her with a place to stay and
assistance in managing her money.
Father further
reported during the interview that he already had completed his court-ordered
services through the Salvation Army, but they no longer had his records. He did, however, provide the DCFS with a
letter from Lewis Counseling Services dated February 14, 2012 which stated as
follows: “Mr. Christopher [B.] has
completed an agreed upon twenty (20) counseling sessions through this
agency. The focus of Mr.
[B’s] counseling has been on sexual offender behavior, decision-making and
appropriate adult relationships. Mr.
[B.] has openly expressed his thoughts and feelings. We have discussed the negative consequences
of antisocial and deviant sexual behaviors.
Mr. [B.] is reportedly in the armed forces and seems to gain much
meaning from his service to his country.
Overall, Mr. [B.] has been both cooperative and on time for his
sessions.†In its supplemental report,
the DCFS maintained its recommendation that reunification services not be
offered to Father pursuant to section 361.5, subdivision (b). However, the agency also recommended that, if
the juvenile court decided to order such services, Father should be required to
complete parenting education, a mental health assessment, and individual
counseling to address case issues.
V.
Jurisdiction and Disposition Hearing
The contested jurisdiction and
disposition hearing was held on October 31, 2012. The juvenile court admitted into evidence the
reports prepared by the DCFS, letters from Mother’s service providers showing
her progress with her Regional Center services, paternity-related documents
supporting Father’s claim of parentage, and the letter from Lewis Counseling
Services regarding Father’s counseling sessions. Father testified on his own behalf at the
hearing. According to Father’s
testimony, he was the biological father of Joe and wanted to reunify with
him. Father believed that he was capable
of taking care of his children and that he did not have any mental disabilities
that would interfere with his ability to care for Joe. He admitted that he had failed to reunify
with two of his children, P.B. and A.B., in the 1999 case, which had led to the
removal of two of his other children, T.B. and J.B., in the 2010 case. Father testified that he timely had completed
his court-ordered services in the 1999 case, but that his records of completion
had not been accepted. He denied any
knowledge that the court previously had found that he had sexually abused a
child. Father also claimed that he
voluntarily served in the United States Coast Guard and was a commanding
officer in that service.
The juvenile court found true the
allegations against both Mother and Father and sustained the first amended
petition under section 300, subdivisions (b) and (j). The court also found that Father was the
presumed father of Joe based on his voluntary declaration of paternity. Following the jurisdictional findings,
Father’s counsel requested a 30-day continuance for a contested disposition
hearing based on the DCFS’s recommendation that Father not be offered reunification
services. The court denied the request
for a continuance on the ground that the matter had been set for a contested
adjudication and a contested disposition that day.
After hearing
the argument of counsel as to disposition, the juvenile court declared Joe a
dependent of the court pursuant to section 300, subdivisions (b) and (j), and
ordered that he be removed from the custody of both parents and suitably placed
by the DCFS. The court ordered family
reunification services for Mother, including parenting instruction,
participation in Regional Center supportive living services, and monitored
visitation with Joe subject to the DCFS’s discretion to liberalize. The court denied family reunification
services for Father pursuant to section 361.5, subdivision (b)(11) based on a
finding that Father had not made a reasonable effort to treat the problems that
had led to the removal of his other children.
In making its ruling, the court reasoned as follows: “As to the father, this is the father’s fifth
child. And although the court is unaware
at what stage the proceedings are in [Department] 420 for two of the children,
two of the children are already in a legal guardianship, and father has not
completed or addressed the reasons why the children were removed from his
care.†Following the jurisdiction and
disposition orders, Father filed a timely notice of appeal.
I.
Jurisdictional Findings Based on Father’s Prior
Sexual and Physical Abuse
Father first challenges the
sufficiency of the evidence supporting the juvenile court’s jurisdictional
findings based on his history of sexual and physical abuse. He specifically contends that the DCFS failed
to present sufficient evidence to establish that the juvenile court previously
had sustained a dependency petition alleging that Father had sexually and
physically abused two of his children.
He also claims that the evidence was insufficient to support a finding
that Father’s alleged prior sexual and physical abuse of his daughter and
stepdaughter posed a substantial risk of harm to his infant son, Joe.
We review a juvenile court’s
jurisdictional findings for substantial evidence. (In re
J.K. (2009) 174 Cal.App.4th 1426, 1433; In
re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) Substantial evidence is “evidence that is
reasonable, credible, and of solid value.â€
(In re Yvonne W. (2008) 165
Cal.App.4th 1394, 1401.) Under this
standard of review, we examine the whole record in a light most favorable to
the findings and conclusions of the juvenile court and defer to the lower court
on issues of credibility of the evidence and witnesses. (In re
Savannah M. (2005) 131 Cal.App.4th 1387, 1393; In re Tania S. (1992) 5 Cal.App.4th 728, 733.) We determine only whether there is any
substantial evidence, contradicted or uncontradicted, that supports the
juvenile court’s order, resolving all conflicts in support of the determination
and indulging all legitimate inferences to uphold the lower court’s
ruling. (In re John V. (1992) 5 Cal.App.4th 1201, 1212; In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) If there is substantial evidence to support
the juvenile court’s order, we must uphold the order even if other evidence
supports a contrary conclusion. (
247, 251.)
As Father
acknowledges, “a jurisdictional finding against one parent is good against
both.†(In re Alysha S. (1996) 51 Cal.App.4th 393, 397.) Stated otherwise, a child “is a dependent if
the actions of either parent bring [the child] within one of the statutory
definitions of a dependent. [Citations.]
This accords with the purpose of a dependency proceeding, which is to
protect the child, rather than prosecute the parent. [Citation.]†(Ibid.;
see also In re Alexis (2009) 171
Cal.App.4th 438, 451 [“When a dependency petition alleges multiple grounds for
its assertion that a minor comes within the dependency court’s jurisdiction, a
reviewing court can affirm the juvenile court’s finding of jurisdiction over
the minor if any one of the statutory bases for jurisdiction that are
enumerated in the petition is supported by substantial evidence.â€].) Here, the jurisdictional finding as to
Mother, which is not challenged on appeal, constitutes a sufficient and
independent basis for dependency jurisdiction over Joe without regard
to any findings related to Father.
II.
Denial of Father’s Request for a Continuance
Father next contends that the
juvenile court erred when it denied his request for a continuance of the
disposition hearing. He argues that a
30-day continuance was required under section 358, subdivision (a)(3) because
the DCFS had recommended that Father be denied family reunification
services. He also asserts that the
denial of a continuance violated his due process rights by precluding him from
presenting an adequate defense.
The juvenile dependency system
requires that petitions brought under section 300 be heard and decided
rapidly. (Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1241.) By mandating accelerated proceedings, the
dependency system “seeks to keep to a minimum the amount of potential
detriment to a minor resulting from court delay. [Citation.]†(Renee
S. v. Superior Court (1999) 76 Cal.App.4th 187, 193.) Continuances in dependency cases are
therefore discouraged and “should be difficult to obtain.†(Jeff M.
v. Superior Court, supra, at p.
1242.) The denial of a request for a
continuance will not be overturned on appeal absent a showing of an abuse of
discretion. (In re Karla C. (2003) 113 Cal.App.4th 166, 180;
808, 811.) “Discretion is abused when a
decision is arbitrary, capricious or patently absurd and results in a manifest
miscarriage of justice. [Citation.]†(
Section 358, subdivision (a), the
statute on which Father relies, provides that prior to making a dispositional
finding for a dependent child, “the court may continue the hearing on its own
motion, the motion of the parent, or the motion of the child, as follows: [¶] . . . [¶] (3) If the social worker is
alleging that subdivision (b) of Section 361.5 is applicable, the court shall
continue the proceedings for a period not to exceed 30 days. The social worker shall notify each parent of
the content of subdivision (b) of Section 361.5 and shall inform each parent
that if the court does not order reunification a permanency planning
hearing will be held, and that his or her parental rights may be terminated
within the timeframes specified by law.â€
(§ 358, subd. (a)(3).)
On the other hand, section 352,
subdivision (b) provides, in pertinent part, that “[n]otwithstanding any other
provision of law, if a minor has been removed from the parents’ or guardians’
custody, no continuance shall be granted that would result in the dispositional
hearing, held pursuant to Section 361, being completed longer than 60 days
after the hearing at which the minor was ordered removed or detained, unless
the court finds that there are exceptional circumstances requiring such a
continuance.†(§ 352, subd. (b); see
also In re Giovanni F. (2010) 184
Cal.App.4th 594, 604-605 [“Absent ‘exceptional circumstances,’ if a child is
detained the dispositional hearing must be completed within 60 days of the
detention hearing.â€].) In this case, the
original section 300 petition was filed and Joe was ordered detained on July
30, 2012. Following several
continuances, the petition was finally adjudicated on October 31, 2012, more
than 60 days after the detention hearing.
Consequently, the juvenile court could only grant a continuance of the
disposition hearing upon a showing of exceptional circumstances. Father, however, made no such showing.
In asking the juvenile court for a
continuance, Father’s attorney merely expressed her belief that Father was
entitled to have the disposition hearing held 30 days after the adjudication of
the section 300 petition because the DCFS was recommending that Father not be
offered family reunification services.
When reminded by the juvenile court that the matter had been calendared
for a contested adjudication and a contested disposition that day, the attorney
responded that proceeding with the disposition would be over Father’s
objection, but failed to offer any evidence of extraordinary circumstances
warranting a continuance.
On appeal, Father asserts that a
continuance was necessary because the DCFS did not disclose that Father had
participated in sex abuse counseling until it filed its supplemental report the
day of the jurisdiction hearing, and did not attempt to conduct any follow-up
investigation concerning Father’s progress with such services. However, it was Father who created the delay
by repeatedly refusing to meet with the DCFS about the pending case. He did not appear for his scheduled
interviews on September 14 and October 9, 2012, and refused to reschedule the
interview for the morning of October 11, 2012 on the basis that he “doesn’t
rise early for nothing.†The DCFS was
finally able to meet with Father a few days before the continued jurisdiction
hearing, at which time he presented the agency with the letter dated February
14, 2012 from Lewis Counseling Services.
Given Father’s persistent lack of cooperation with the DCFS and his own
last-minute disclosure of the letter, we see no merit to his claim that the
juvenile court should have ordered the DCFS to further investigate the contents
of the letter before proceeding with the disposition.
Moreover, even if we assume that
section 358 governed Father’s request for a continuance of the disposition
hearing, any error committed by the juvenile court in denying the request was
harmless. The purpose of section 358,
subdivision (a)(3) is to ensure that a parent is timely notified prior to the
disposition hearing that the social services agency is recommending that the
parent be denied family reunification services pursuant to section 361.5, subdivision
(b). Here, the DCFS expressly stated in
its Jurisdiction/Disposition Report, and in each of its supplemental reports,
that it was recommending that Father not be offered reunification services
under section 361.5, subdivisions (b)(10) and (b)(11) based his failure to
comply with his court-ordered services and to reunify with his children, P.B.
and A.B., each of whom received permanent placement services. Considering that the Jurisdiction/Disposition
Report was filed more than 60 days before the October 31, 2012 disposition
hearing and that the February 14, 2012 letter from Lewis Counseling Services
had been in Father’s possession prior to that time, Father cannot show that the
juvenile court’s refusal to continue the disposition hearing caused him to
suffer any prejudice.
For similar
reasons, we reject Father’s argument that the denial of his request for a
continuance constituted a violation of his due process rights. Due process in dependency proceedings
requires that the parent be provided with notice of the proceedings and an
opportunity to be heard. (
841, 851; In re Crystal J.
(1993) 12 Cal.App.4th 407, 412-413.) As
discussed, Father had adequate notice of the jurisdiction and disposition
hearing and the DCFS’s recommendation that Father be denied reunification
services under section 361.5, subdivision (b).
At the contested hearing, the juvenile court offered Father an
opportunity to bring forward witnesses and other evidence concerning his
efforts to address the problems that led to the removal of his older children,
including his participation in court-ordered counseling. Any failure by Father to present additional
evidence to support his position was not because the juvenile court denied him
the opportunity to offer evidence, but because Father chose not to do so. The juvenile court accordingly did not abuse
its discretion or violate due process in denying Father’s request for a
continuance.
III.
Denial of Family Reunification Services to
Father
Father also challenges the
sufficiency of the evidence supporting the portion of the juvenile court’s
disposition order denying him family reunification services. He contends that the DCFS failed to prove by
clear and convincing evidence that he had not made reasonable efforts to
address the problems that led to the removal of his older children. He further claims that the juvenile court
failed to consider the evidence presented by Father which supported a finding
that he had in fact made such reasonable efforts.
“‘As a general rule, reunification
services are offered to parents whose children are removed from their custody
in an effort to eliminate the conditions leading to loss of custody and
facilitate reunification of parent and child.
This furthers the goal of preservation of family, whenever
possible. [Citation.]’ [Citations.]â€
(In re Allison J. (2010) 190
Cal.App.4th 1106, 1112.) “Section 361.5,
subdivision (b), however, sets forth certain exceptions – called reunification
bypass provisions – to this ‘general mandate of providing reunification
services.’ [Citation.] These enumerated ‘bypass’ provisions are the
specific instances in which the Legislature has recognized ‘that it may be
fruitless to provide reunification services,’ and once the court has found one
of these specific instances applicable, ‘the general rule favoring
reunification is replaced by a legislative assumption that offering services
would be an unwise use of governmental resources.’ [Citation.]†(
816, 821.) An order denying
reunification services under section 361.5, subdivision (b) is reviewed on
appeal for substantial evidence. (
207, 216; Cheryl P. v. Superior Court
(2006) 139 Cal.App.4th 87, 96.)
In this case, the juvenile court
denied reunification services to Father under section 361.5, subdivision
(b)(11) which states, in relevant part, as follows: “Reunification services need not be provided
to a parent or guardian described in this subdivision when the court finds, by
clear and convincing evidence, . . . [¶] (11) That the parental rights of a
parent over any sibling or half sibling of the child had been permanently
severed, . . . 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 of that child from the parent.†Father does not dispute that the first prong
of section 361.5, subdivision (b)(11) was satisfied in that he failed to
reunify with P.B. and A.B. in the 1999 case which resulted in the termination
of his parental rights over both children.
Father’s argument instead is directed at the second prong, and
specifically, whether the juvenile court properly found, by clear and
convincing evidence, that Father had not made a reasonable effort to treat the
problems underlying the prior dependency cases.
“The ‘no reasonable effort’ clause
provides a means of mitigating a harsh rule that would allow the court to
deny services based only upon the parent’s prior failure to reunify with the
child’s sibling ‘when the parent had in fact, in the meantime, worked toward
correcting the underlying problems.’
[Citation.]†(
the extent of a parent’s efforts, not
whether he or she has attained ‘a certain level of progress.’ [Citation.] ‘To be reasonable, the parent’s
efforts must be more than “lackadaisical or half-hearted.â€â€™ [Citations.]
However, ‘[t]he “reasonable effort to treat†standard “is not synonymous
with ‘cure.’â€â€™ [Citation.]†(R.T.
v. Superior Court (2012) 202 Cal.App.4th 908, 914.) In evaluating whether the efforts made by a
parent are reasonable, the juvenile court may “consider the
parent’s efforts, as well as any other factors relating to the
. . And while the degree of progress is
not the focus of the inquiry, a
parent’s progress, or lack of progress, both in the short and long term, may be
considered to the extent it bears on the reasonableness
of the effort made.†(
Considering the totality of the
record in this case, there was substantial evidence to support the juvenile
court’s finding that Father had failed to make reasonable efforts to address
the problems that led to the removal of his other children. To counter the evidence presented by the DCFS
that he had not complied with his court-ordered services, Father primarily
relied on the letter from Lewis Counseling Services which reflected that, as of
February 2012, he had completed 20 counseling sessions that were focused
on “sexual offender behavior, decision-making and appropriate adult
relationships.†However, as of the
October 2012 jurisdiction and disposition hearing, Father continued to deny
that he had sexually or physically abused his daughter or stepdaughter, and
insisted that he never touched any child in a sexually inappropriate manner. He also continued to deny that the juvenile
court in the 1999 case had found the prior sexual and physical abuse
allegations to be true in declaring P.B. and A.B. dependents of the court.
Given Father’s
refusal to acknowledge his prior acts of sexual and physical abuse, or to even
admit that there were prior jurisdictional findings based on such abuse, the
juvenile court reasonably could conclude that Father’s participation in
counseling was not a reasonable effort to address the problems of abuse. The record also reflects that, apart from his
participation in sex abuse counseling, Father had not made a reasonable effort
to comply with his other court-ordered services. While Father testified that he had completed
his services in the past and that his records of completion had been rejected
for an unknown reason by either the DCFS or the court in the prior case, the
juvenile court reasonably could have found that Father’s testimony on this
matter was not credible in light of the contrary evidence. Under these circumstances, the juvenile
court’s denial of reunification services to Father was supported by
DISPOSITION
The juvenile
court’s jurisdiction and disposition orders are affirmed.
ZELON,
J.
We concur:
PERLUSS,
P. J.
WOODS,
J.
name="_ftn1" title="">[1] All
further statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Mother
is not a party to this appeal.
