Filed 2/28/18 In re M.G. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE


In re M.G., a Person Coming Under the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL SERVICES AGENCY,
Plaintiff and Respondent,
v.
F.G.,
Defendant and Appellant. A151692

(Alameda County
Super. Ct. No. JD-027687-01)


The juvenile court denied family reunification services to F.G., the father of M.G. (Father), under Welfare and Institutions Code section 361.5, subdivision (b)(10) and (11) (section 361.5(b)(10) and (11)), which provide family reunification services need not be offered to a parent of a dependent child if services for a sibling of that child previously had been terminated because the parent failed to reunify with the sibling and the parent thereafter has not made a reasonable effort to treat the problems that led to the sibling’s removal. On appeal, Father contends, although the juvenile court previously terminated reunification services for M.G.’s three half siblings because Father failed to reunify with them, the evidence at the disposition hearing for M.G. was insufficient to justify bypassing Father for services. We agree and reverse.
I. BACKGROUND
Father is the biological father of M.G. M.G. was brought into protective custody after he disclosed he had been inappropriately touched on his buttocks and genitalia by an adolescent male residing in the same home where M.G. and Father were staying. The Alameda County Social Services Agency (Agency) subsequently filed a section 300 petition on his behalf.
The petition alleged four counts: (1) M.G. had been touched on more than one occasion on his buttocks and genital area by an older child residing in the same home while under the care of Father, and Father did not “ ‘believe him’ ” or protect him when told about the incidents (counts B-1 & D-1); (2) M.G.’s mother has congestive heart failure and is unable to provide a consistent living environment or care for the minor at the current time due to her medical needs (counts B-2 & G-1); (3) M.G.’s three half siblings were former dependents of the court and, despite being offered reunification services, Father’s parental rights were terminated (counts B-3 & J-1); and (4) Father has mental health needs that impact his ability to care for M.G. and place the minor at further risk for abuse or neglect (count B-4).
The Agency filed a disposition report, along with two addendum reports. One of those addendum reports outlined the prior dependency matters and the reunification services offered to Father in connection with those matters. Specifically, the Agency noted Father had completed a parent orientation seminar and attended individual therapy, parent education classes, and two psychology appointments. However, Father did not complete his psychological evaluation and was resistant to doing so. The second addendum report noted Father did not reliably attend scheduled visits with M.G. and continued to question whether M.G. experienced any abuse. The Agency recommended the court deny reunification services to Father but provide reunification services to M.G.’s mother.
At the disposition hearing, the court dismissed the mental health allegation (count B-4), finding the evidence was insufficient to support it. The court sustained the remaining allegations. Father’s attorney argued providing services would be in the best interest of M.G. The juvenile court disagreed and found by clear and convincing evidence Father should be denied reunification services pursuant to section 361.5(b)(10) and (11). The court commented the “most important” allegations related to Father’s resistance to believing M.G. about the abuse. Based on those allegations, the court concluded it was appropriate to bypass Father for services. Father timely appealed.
II. DISCUSSION
A. Standard of Review
We review an order denying reunification services under subdivision (b) of section 361.5 for substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) Under such circumstances, we do not make credibility determinations or reweigh the evidence. (A.A. v. Superior Court (2012) 209 Cal.App.4th 237, 242.) Rather, we “review the entire record in the light most favorable to the trial court’s findings to determine if there is substantial evidence in the record to support those findings.” (Ibid.)
“However, substantial evidence is not synonymous with any evidence. [Citation.] ‘A decision supported by a mere scintilla of evidence need not be affirmed on appeal. [Citation.] Furthermore, “[w]hile substantial evidence may consist of inferences, such inferences must be ‘a product of logic and reason’ and ‘must rest on the evidence’ [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations].” [Citation.] “The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.” ’ ” (In re Albert T. (2006) 144 Cal.App.4th 207, 216–217, italics omitted.)
B. Validity of the Bypass Order Under Section 361.5(b)(10) and (11)
Father claims insufficient evidence supports the order denying reunification services pursuant to section 361.5(b)(10) and (11). Specifically, Father contends the court erred when it based its bypass order solely on his conduct in the current dependency matter—i.e., his failure to believe M.G.’s allegations of sexual assault. Father asserts any such order must be based on unresolved issues associated with his prior dependency matters, and those involved unrelated domestic violence and mental health allegations. In response, the Agency argues substantial evidence illustrates Father continued to have mental health issues he failed to address.
“As a general rule, when a child is removed from parental custody under the dependency laws, the juvenile court is required to provide reunification services to ‘the child and the child’s mother and statutorily presumed father . . . .’ (§ 361.5, subd. (a).) The purpose of reunification efforts is 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.’ ” (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1120.)
However, section 361.5(b)(10) and (11) “ ‘authorize the denial of services to a parent who has failed to reunify with another child or whose parental rights to another child were terminated if the court finds that the parent “has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling . . . .” ’ ” (In re D.H. (2014) 230 Cal.App.4th 807, 815.) Application of these subdivisions involves a two-part analysis. First, the juvenile court must find the parent failed to reunify with a sibling of the child, and second, the parent subsequently failed to make reasonable efforts to correct the problems leading to removal of the sibling. (Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at p. 97.) Once it is determined the parent of a dependent child has failed to reunify with a sibling, “the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources.” (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) However, “[t]he inclusion of the ‘no-reasonable effort’ clause in the statute provides a means of mitigating an otherwise harsh rule that would allow the court to deny services simply on a finding that services had been terminated as to an earlier child when the parent had in fact, in the meantime, worked toward correcting the underlying problems.” (In re Harmony B. (2005) 125 Cal.App.4th 831, 842.)
Father does not dispute the first prong of section 361.5(b)(10) and (11) has been satisfied. As he concedes, Father’s three older children were declared dependents of the juvenile court under section 300, subdivision (b), and he failed to reunify with those children following their removal. Father’s parental rights over the children were subsequently terminated between 2006 and 2009. Father’s argument on appeal instead is directed at the second prong and the evidence required to make this showing.
As an initial matter, the parties dispute whether courts may deny reunification services based on actions and progress in the current matter. The Agency argues courts may weigh parental actions in the current case plan in determining whether to deny reunification services. Father, conversely, asserts it was inappropriate for the court to do so because the court must only evaluate the problems from the earlier dependency cases. Both parties are partially correct. Cases uniformly consider a parent’s progress in a current matter when assessing whether that parent has made reasonable efforts to treat the problems leading to removal of other children in prior dependency matters. (See, e.g., In re Lana S. (2012) 207 Cal.App.4th 94, 108–109 [current substance abuse issues could be considered in assessing whether § 361.5, subd. (b) applies].) However, that progress must be in the context of an outstanding issue from the prior dependency matters. (See, e.g., R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 915 [found current situation “precisely the same situation” that led to removal of sibling in assessing whether to bypass services for parents].)
Here, the trial court’s rationale for denying services was based on Father’s failure to believe his child’s allegations of sexual assault and his refusal to support his child in dealing with these allegations. This issue, however, is completely distinct from the grounds that gave rise to the prior dependency matters—namely, Father’s domestic violence toward the children’s mother, Father’s mental health diagnosis and cannabis use, and his inappropriate housing accommodations. In denying reunification services under section 361.5(b)(10) and (11), the trial court thus erred in relying on Father’s progress in the current matter rather than on whether Father made reasonable efforts to treat those issues leading to the prior removal of M.G.’s half siblings.
Despite this error, we must assess whether the record otherwise supports the denial of benefits. “[O]ur focus is upon the ultimate decision rather than the underlying analysis of the trial court. ‘ “. . . [W]e review the judgment for reversible error, not merely to determine whether the trial court’s interpretation . . . was correct, but whether the judgment is correct on any theory. [Citation.] ‘. . . [A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason.’ ” ’ ” (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1384.)
The Agency asserts substantial evidence demonstrates Father failed to address two issues that led to M.G.’s half siblings’ removal: mental health issues and housing accommodations. As discussed below, we cannot conclude either ground raised by the Agency is sufficient to justify bypassing Father for services based on the current record before this court.
Father’s mental health was indisputably an issue in the earlier dependency proceedings of M.G.’s half siblings. Those earlier petitions alleged Father’s mental health made him unable to care for those children. Father failed to adequately address this issue, and his parental rights were terminated. And the Agency raises a number of legitimate concerns regarding Father’s current mental health, such as third party observations that Father exhibited symptoms of mental health issues and Father’s testimony that he has not sought treatment for any mental health issues. However, Father testified and denied having any current mental health issues, and the court found untrue the mental health petition allegation. The court specifically acknowledged the mental health concerns identified by the Agency but concluded: “I don’t have any documentation to reflect that [Father] has a current diagnosis or anything that was more close in time to the date, today’s date. And without any information from a medical professional, a therapist, a psyche eval, I don’t feel that the B-[4] allegations can be found to be true.” When the court asked the parties for argument on the issue, the Agency’s counsel agreed with the court’s conclusion, stating: “I’m in agreement that B-4 should be omitted. I didn’t see any evidence in the reports that I read of any behavior on the part of [Father] to make me think that should be a petition allegation.” By presenting the same evidence that was considered by the juvenile court, the Agency is essentially requesting this court to reweigh the evidence. But under the substantial evidence standard of review we do not reweigh the evidence nor substitute our judgment for that of the juvenile court. (In re Katelynn Y. (2012) 209 Cal.App.4th 871, 881.) As such, we are bound by the juvenile court’s finding regarding Father’s current mental health status.
Moreover, the Agency fails to connect any of Father’s alleged current mental health problems to the issues that gave rise to M.G.’s removal. Such a connection is crucial because courts generally require an overlap of issues between the current and prior dependency matters when applying section 361.5(b)(10) and (11). On this point, we find In re D.H., supra, 230 Cal.App.4th 807 instructive. The minors in that matter had been removed due to alcohol abuse and domestic violence problems, and the court subsequently denied the father reunification services under section 361.5(b)(10) and (11). (In re D.H., at p. 815.) The father argued he was entitled to services because there was no evidence alcohol or domestic violence led to the prior removal of the minors’ half siblings. (Ibid.) The Third Appellate District agreed. The court noted: “The record reflects only that the half siblings were removed because they were living in ‘unsafe and unhealthy conditions’; those problems were not addressed in the case with the half siblings, and parental rights were terminated. The record does not, however, reflect that those unsafe and unhealthy conditions were caused by father’s alcohol use, anger management problems or domestic violence—the problems that led to [the current minors’] removal.” (Id. at p. 816.) As a result, the court could not find “substantial evidence that the bypass provisions of section 361.5(b)(10) and (11) apply.” (Id. at p. 817.) The Second Appellate District reached a similar conclusion in In re Albert T., supra, 144 Cal.App.4th 207. There, the minor was removed from his mother’s care due to domestic violence issues. The court evaluated whether domestic violence was also an issue in the prior removal of the minor’s sibling. (Id. at p. 219.) The court concluded while domestic violence was a “ ‘concern’ ” at the time of the sibling’s removal, that count was dismissed from the petition and thus was not a “ ‘problem[] that led to the removal of the sibling.’ ” (Id. at p. 220.)
The parties have not cited, and we are unaware of, any authority allowing courts to bypass reunification services when the current dependency matter involves issues separate from those of the prior dependency matters. And we believe requiring such a connection is reasonable. Courts have long emphasized “ ‘[i]t is difficult, if not impossible, to exaggerate the importance of reunification in the dependency system.’ ” (In re Albert T., supra, 144 Cal.App.4th at p. 217.) “If the evidence suggests that despite a parent’s substantial history of misconduct with prior children, there is a reasonable basis to conclude that the relationship with the current child could be saved, the courts should always attempt to do so. . . . The failure of a parent to reunify with a prior child should never cause the court to reflexively deny that parent a meaningful chance to do so in a later case. To the contrary, the primary focus of the trial court must be to save troubled families . . . .” (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.)
Here, the record does not suggest Father’s mental health was a factor contributing to M.G.’s removal. The petition only identifies Father’s inability to believe or protect M.G. from sexual abuse by an older child residing in the same home, and there is no evidence in the record to suggest this inability is connected to any mental health issues. As a result, denial of reunification services cannot currently be based on Father’s alleged failure to address his mental health problems.
The Agency also contends denial of reunification services was appropriate based on Father’s inadequate housing. However, the housing issue giving rise to the removal of M.G.’s half sibling is distinctly different than the current circumstances. There, M.G.’s half sibling was removed, in part, because Father’s housing accommodations did not allow minors. It is undisputed Father no longer resides in that housing or in other housing that disallows minors. Rather, the current issue involves abuse by another minor residing in the same house. We thus cannot conclude any link exists between the housing issue related to the half sibling’s removal and M.G.’s removal. (See In re D.H., supra, 230 Cal.App.4th at p. 817.)
Accordingly, the trial court erred in denying Father reunification services under section 361.5(b)(10) and (11) based on the current record and its findings with regard to the mental health allegation.
III. DISPOSITION
The portion of the juvenile court’s April 26, 2017 disposition order denying reunification services to Father is reversed. The matter is remanded to the juvenile court to conduct a new hearing to determine the appropriate family reunification services to be provided to Father.


 






_________________________
Margulies, J.


We concur:


_________________________
Humes, P.J.


_________________________
Banke, J.



















A151692
In re M.G.