re Joshua C.
Filed 7/6/12 In re Joshua C. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re JOSHUA
C., a Person Coming Under the Juvenile Court Law.
FRESNO COUNTY
DEPARTMENT OF SOCIAL SERVICES,
Plaintiff and Respondent,
v.
CHRISTINA D.,
Defendant and Appellant.
F063540
(Super. Ct. No. 10CEJ300150-2)
THE COURT
APPEAL
from orders of the Superior Court of
County. Jane Cardoza, Judge.
Gregory
Chappel, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin
Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
Christina D. appeals from the
juvenile court’s dispositional order denying her
Welfare and Institutions Code section 361.5, subdivision (b)(10)
Joshua. Asserting that the court
misapplied section 361.5, subdivision (b)(10), Christina contends that she made
reasonable efforts during the relevant timeframe to treat the problems that led
to the removal of Joshua’s brother, Triston.
Finding substantial evidence to support the juvenile court’s decision,
we affirm.
PROCEDURAL AND FACTUAL SUMMARY
Dependency
proceedings were initiated in Sacramento County in March 2009 when Christina
was involuntarily admitted to a psychiatric facility because she threatened to
commit suicide. Then 23-month-old
Triston was taken into protective custody and placed in foster care and the
Services filed a dependency petition alleging that Christina’s mental
health problems impaired her judgment and rendered her unable to provide
adequate care, supervision and protection for Triston. The petition alleged that on more than one
occasion Christina attempted and/or made threats to harm herself or
Triston. Prior to Triston’s removal in
March 2009, Christina had been receiving family maintenance services since May
2008 for inappropriately disciplining Triston.
The
Sacramento County Juvenile Court ordered Christina to participate in mental
health counseling, parenting classes and submit to random drug testing. She complied by participating in mental
health therapy, completing a parenting
program and testing negative for drugs.
As a result, in November 2009, Triston was placed in her custody on a
family maintenance plan. Approximately a
week before, Christina gave birth to Joshua.
In December
2009, Christina moved to Fresno to live with her boyfriend, Joshua C., Joshua’s
father. Christina and Joshua C. engaged
in domestic violence. In June 2010, her
case was transferred to the Fresno County Juvenile Court (hereafter “the
juvenile courtâ€).
In
July 2010, the juvenile court accepted Christina’s case and ordered her to
participate in parenting classes, counseling and anger management. In August, Christina was scheduled to
participate in anger management but missed her appointment because she did not
have a babysitter. That same month, she
was referred to Jane Amling-Heiken for individual therapy.
By
September 2010, Christina was living in emergency housing with the
children. In late September, the
emergency housing security guard contacted social worker Lisa Reyna of the
Fresno County Department of Social Services (department) to report that
Christina left then 11-month-old Joshua alone while she took Triston for a
walk. Christina told Ms. Reyna that
Joshua was asleep so she left the front door open and asked a neighbor to
listen for him in case he woke up.
Christina said she was only gone for 10 to 15 minutes.
Ms. Reyna was
contacted again in early October 2010 and informed that two days before
Christina and Joshua C. were engaged in a physical altercation at his residence
in the presence of the children.
According to the police, it was mutual combat during which Christina’s
finger was caught in Joshua C.’s shirt and broken. Ms. Reyna offered to relocate Christina and
the children to a woman’s shelter so she could complete her reunification
services. Christina declined.
In October 2010,
the department took Joshua and Triston into protective custody. The department filed an
behalf, alleging that Christina exposed him to domestic violence and left him
alone and unsupervised. (§ 300,
subd. (b).) The petition further alleged
that Triston was removed from Christina because of her mental instability and
that Christina failed to follow through with her mental health counseling, thus
placing Joshua at a similar risk of abuse or neglect. (§ 300, subd. (j).) The department filed a subsequent petition (§ 342)
on Triston’s behalf, alleging that Christina placed Triston at risk of harm by
her ongoing domestic violence. Triston
and Joshua were placed in separate foster care homes.
The juvenile
court ordered the children detained and ordered Christina and Joshua C. to
participate in parenting classes, substance abuse, mental health and domestic
violence assessments and any recommended treatment, and submit to random drug
testing.
In February
2011, following a contested jurisdictional hearing, the juvenile court adjudged
the children dependents and set the dispositional hearing for March 2011. In its dispositional report filed for the
March hearing, the department recommended that the juvenile court order
reunification services for Christina and Joshua C. as to Joshua but terminate
Christina’s reunification services as to Triston for failure to make sufficient
progress. The department reported that
Christina began a parenting class in February 2011 but was dropped from the
class after missing three sessions. She
was scheduled to start the class again in March. In November 2010, Christina began attending
anger management classes and participating in individual therapy with Ms.
Amling-Heiken. In January 2011, Ms.
Amling-Heiken reported that Christina had made “a small amount of progress …
regarding personal insight, judgment, responsibility, reduced disorganization,
chaos, drama and depression.†In
December 2010, Christina was scheduled for a domestic violence assessment but
failed to attend the appointment. That same
month, she completed a substance abuse evaluation and it was recommended that
she participate in residential treatment.
She was scheduled for two intake appointments in January 2011 but did
not attend either one. In October 2010,
Christina enrolled in random drug testing.
In December 2010, she tested positive for marijuana and opiates but had
a prescription on file. She was told to
provide the department verification of attendance at Alcoholics/Narcotics
Anonymous (AA/NA) meetings but had not done so.
In March 2011,
Joshua C. was issued a temporary restraining order against Christina because
she attempted to contact and harass him by telephone and internet.
In May 2011, the
juvenile court conducted the dispositional hearing as to Triston, ordered him
removed from Christina’s custody, terminated her reunification services, and
set a section 366.26 hearing for September 2011. The court set the dispositional hearing as to
Joshua and continued it until July 2011.
Meanwhile, on
June 6, 2011, the juvenile court received the department’s report for the
dispositional hearing. Rather than
recommend reunification services for Christina, as it had previously done, the
department recommended that the juvenile court deny Christina reunification
services pursuant to section 361.5, subdivision (b)(10), because the juvenile
court terminated her reunification services as to Triston and she failed to
make subsequent reasonable efforts to treat the problems that required his
removal. As supporting evidence, the
department cited the facts that in October 2010, Christina and Joshua C. engaged
in domestic violence in the presence of the children, in December 2010, she
tested positive for marijuana, and in March 2011, Joshua C. was granted a
protective order against her.
The department
also reported that Christina began her third parenting class in March 2011, and
had missed three classes by April 2011.
Christina was still in therapy with Ms. Amling-Heiken. However, Christina was dropped from the anger
management program she started in November 2010. Consequently, departmental staff conducted
several meetings in April 2011 to determine whether she would be accepted back
into the program. At those meetings, the
staff recommended that Christina enter residential drug treatment but she
refused stating that she was employed and that she disagreed with the
recommendation. The department also
reported that Christina failed to drug test 18 out of 32 times and stopped drug
testing altogether in April 2011.
On June 10,
2011, Christina entered the Spirit of Woman of California residential drug treatment
program (Spirit of Woman) and was expected to complete the residential phase of
her treatment in December 2011. In a
letter to the juvenile court dated July 12, 2011, Christina’s case manager
informed the court that Christina was attending all of her classes, meeting
weekly for individual therapy, and appeared to be doing well.
In July 2011,
the juvenile court conducted a contested dispositional hearing and took
judicial notice of Triston’s case file.
Lisa Reyna testified that Christina completed the parenting program and
was still in treatment at the Spirit of Woman.
Ms. Reyna did not believe that Christina had made significant progress
in addressing her domestic violence or anger issues.
Christina
testified that she was participating in substance abuse, domestic violence,
group counseling and group therapy at the Spirit of Woman. She also testified that she applied for a
restraining order against Joshua C., and that the hearing was set for later in
the month. She said she applied for the
restraining order because the abuse had become too much to handle. She also testified that she had learned about
herself, her addiction, domestic violence, and how she handled situations.
At the
conclusion of the hearing, the juvenile court ordered Joshua removed from
Christina and Joshua C.’s custody, denied Christina reunification services as
recommended and ordered reunification services for Joshua C. This appeal ensued.
DISCUSSION
I. Overview
is the paramount objective of the dependency cases until permanency
planning. (Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 546.) To that end, parents of dependent children
are generally entitled to reunification services “aimed at assisting the parent
in overcoming the problems that led to the child's removal.†(Id.)
The statute governing
reunification services is section 361.5.
Subdivision (a) of section 361.5 embodies the general statutory mandate
for the provision of reunification services whenever a dependent child is
removed from parental custody. Subdivision (b) of section 361.5 sets forth a number of
circumstances in which reunification services can be bypassed. These bypass provisions reflect the
Legislature's recognition that “‘it may be fruitless to provide reunification
services under certain circumstances.
[Citation.] Once it is determined
one of the situations outlined in 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€
(Renee J. v. Superior Court
(2001) 26 Cal.4th 735, 744.)
applies when reunification services previously provided with respect to the dependent
child’s sibling have been terminated. It
provides in relevant part:
“(b) Reunification
services need not be provided to a parent … described in this subdivision when
the court finds, by clear and convincing evidence … [¶ ] … [¶ ] (10) [t]hat the court ordered termination of
reunification services for any siblings or half siblings of the child because
the parent … failed to reunify with the sibling or half sibling after the
sibling or half sibling had been removed from that parent … 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 that parent .…â€
(§ 361.5, subd. (b)(10).)
Subdivision (b)(10)
contemplates a two-prong inquiry: (1)
whether the parent previously failed to reunify with the dependent child’s
sibling(s); and (2) whether the parent “subsequently made a reasonable effort
to treat the problems that led to removal of the sibling ....†(§ 361.5, subd. (b)(10); see
Cal.App.4th 87, 96 (Cheryl P.).) Only the second prong is disputed here.
We review the juvenile
court’s order denying reunification services under section 361.5, subdivision
(b) for substantial evidence. (
Cal.App.4th 586, 600.) In
so doing, we bear in mind that the juvenile court was required to employ the
heightened standard of clear and convincing evidence in applying the statute. (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.) In addition, we draw all reasonable
inferences from the evidence to support the juvenile court’s findings and
orders, and we review the record in the light most favorable to its
determinations. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
in mind, we turn to the specific issue presented here.
II. Contention
Under the applicable
statutory exception, prior failure to reunify with the dependent child’s
sibling warrants bypass of reunification services, unless the parent “subsequently
made a reasonable effort to treat the problems†underlying the sibling’s
removal. (§ 361.5, subd. (b)(10),
italics added.)
Christina contends
that the word “subsequently†refers to efforts made after the order terminating
reunification services as to the sibling.
In her case, she argues, the triggering event occurred in May 2011, when
the juvenile court terminated her reunification services as to Triston. Her efforts subsequent to that, she claims,
reasonably addressed the concerns requiring Triston’s removal thus rendering
section 361.5, subdivision (b)(10) inapplicable in her case.
The department
contends that the triggering event under the statute is the date the sibling
was initially removed from parental custody, which in Triston’s case, it
further contends, was May 2009. Thus,
the department argues that the juvenile court could consider the reasonableness
of Christina’s efforts from that date forward in applying the statute.
In her reply brief,
Christina clarified that she does not dispute that the juvenile court could
consider her efforts prior to its order terminating reunification
services. However, she contends that,
correctly applied, section 361.5, subdivision (b)(10) requires the juvenile
court to focus its determination on the efforts made by a parent after the
termination of reunification of services for a sibling. To that end, she cites In re Harmony B. (2005) 125 Cal.App.4th 831 (Harmony B.) as authority establishing the order terminating
reunification services as the proper reference point for the juvenile court’s
analysis.
As we explain in our
analysis that follows, Harmony B. is
unavailing because it is factually distinguishable and represents a conflicting
view on the issue Christina raises.
Further, we conclude on this record that the juvenile court properly
denied Christina reunification services under section 361.5, subdivision
(b)(10).
A.
unavailing.
court, at a combined hearing, terminated reunification services as to
appellants’ (mother and father) two older children and, based on that
termination order, denied them reunification services as to the youngest child
pursuant to section 361.5, subdivision (b)(10).
(Harmony B.,
839.) On appeal, the father challenged
the denial order, arguing that in order to find that the parent failed to make
reasonable efforts under the statute, there had to be a gap in time between its
orders terminating and denying reunification services. (Id.
at p. 840.) The Fourth District Court of
Appeal, Division Two, affirmed the juvenile court’s denial order, concluding that there did not have to be a gap in time between the two orders
under section 361.5, subdivision (b)(10).
(Id. at pp. 842-843.) If there was a gap, the court concluded, the
juvenile court should consider any efforts the parent made in that interim
period to correct his or her problems.
If both orders were made in immediate proximity, however, the court
concluded that the “no-reasonable effort†clause was a formality. (Ibid.) The court explained:
“[W]hen some time has elapsed after termination of reunification
services with respect to one child, the court appropriately must take into
account the parent’s reasonable efforts to correct the underlying problems in
the interim before the court denies reunification services with respect to a
second child. When, however, as in the instant
case, the two proceedings occur in immediate proximity, the trial court
required finding under the ‘no-reasonable effort’ clause is a formality because
the parent’s circumstances necessarily will not have changed. In our view, the statute was amended to
provide a parent who has worked toward correcting his or her problems an
opportunity to have that fact taken into consideration in subsequent
proceedings; it was not amended to create further delay so as to allow a
parent, who up to that point failed to address his or her problems, another
opportunity to do so.†(
pp. 842-843.).)
The following year, the Fourth District Court of Appeal, Division
One published a factually similar case, Cheryl
P., supra, 139 Cal.App.4th 87, taking a different position. As in Harmony
B., the juvenile court in Cheryl P.
terminated reunification services as to one child and denied services as to the
other pursuant to section 361.5, subdivision (b)(10), at a combined
hearing. (Cheryl P., supra, 139 Cal.App.4th at pp. 94-95.) In denying the parents reunification
services, the juvenile court observed that the agency should not have to
continue services since they proved unsuccessful. (Id.
at p. 95.)
The Cheryl P. court
reversed, concluding that the juvenile court did not make a finding that the
parents failed to make a reasonable effort to treat the problems that led to
the first child’s removal but instead focused on their lack of progress after
18 months of services. (
“fruitless†standard in concluding that additional services would be
“pointless.†(Ibid.) Finally, the court
interpreted “subsequently†to refer to efforts made after removal of the
sibling. (Id. at p. 98.) The court
stated: “Our conclusion unavoidably
rests on the premise that when a case involves the almost simultaneous
termination of services in the sibling’s case and the denial of services at the
child’s dispositional hearing, the statutory language ‘has not
treat the problems’ [citation, italics added] refers to reasonable efforts made
since the removal of the sibling.
[Citation.]†(
factually distinct from Christina’s case in that the termination and denial of
services orders in those cases were issued at the same hearing. In this case, the juvenile court terminated
Christina’s reunification services as to Triston in May 2011, and denied her
reunification services as to Joshua in July 2011. Moreover, to the extent that the
interpretation of the modifier “subsequently.â€
However, we need not take a position in this case because we conclude
that substantial evidence supports a finding that Christina’s efforts to
resolve the problems necessitating Triston’s removal were not reasonable from
any relevant vantage point.
B.
supports the juvenile court’s denial of reunification services pursuant to
section 361.5, subdivision (b)(10).
Triston was initially removed from Christina’s custody in March 2009
because she was mentally unstable and threatening him and herself harm. He was removed again along with Joshua in
October 2010 because she exposed them to domestic violence. From March 2009 until May 2011, when the
juvenile court terminated her services, Christina was provided parenting
classes, mental health and domestic violence counseling, and substance abuse
treatment. During that time, she did not
participate in domestic violence counseling and, not only engaged in ongoing
domestic violence with Joshua C. in the presence of the children, but
aggressively pursued contact with him, necessitating a court order to restrain
her. In addition, she was dropped from
her parenting class, did not participate in drug treatment or attend AA/NA
meetings, and stopped drug testing in April 2011, after failing to drug test
numerous times. On this evidence, the juvenile
court had more than substantial evidence before it to determine that
Christina’s efforts following Triston’s removal were not reasonable in the
context of section 361.5, subdivision (b)(10).
Substantial evidence also supports the juvenile court’s finding that
Christina’s efforts to treat the problems requiring Triston’s removal
subsequent to its order terminating her reunification services in May 2011,
were not reasonable. Though Christina
participated in individual therapy, completed the parenting program and entered
drug treatment during the post-termination period, she actively resisted
residential drug treatment as late as April 2011, and did not enter the program
until after the department published its recommendation to deny her
reunification services. It was only upon
entering drug treatment that she began participating in domestic violence
counseling, which was a key component of her services plan.
The “no-reasonable
effort†clause provides a means of mitigating a harsh rule that would allow a
juvenile court to reflexively deny services upon a parent’s failure to reunify
with a child’s sibling when the parent in the meantime worked toward correcting
the underlying problems. (
The reasonable effort requirement focuses on
efforts, not progress, however, the efforts must be genuine. (R.T.
v. Superior Court (2012) 202 Cal.App.4th 908, 914; See K.C. v. Superior Court (2010) 182 Cal.App.4th 1388, 1393.) Even assuming for the sake of crediting
Christina’s best argument that the “no-reasonable clause†refers to the
post-termination period, the evidence supports a reasonable inference that her
efforts were more motivated by the loss of another child rather than by a
desire to safely parent her children.
Consequently, the evidence supports a finding that Christina did not
make reasonable efforts to treat the problems that necessitated Triston’s
removal.
Under the
circumstances, the juvenile court was warranted in denying Christina
reunification services for Joshua based on section 361.5, subdivision (b)(10).
DISPOSITION
The juvenile court’s
dispositional order denying Christina reunification services as to Joshua is
affirmed.
name="_ftn1" title="">* Before Wiseman, Acting P.J., Levy, J. and Cornell, J.
name="_ftn2" title="">[1] All further statutory references
are to the Welfare and Institutions Code unless otherwise indicated.
