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In re M.M.

In re M.M.
05:26:2013





In re M












In re M.M.















Filed 5/17/13
In re M.M. CA2/3















NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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



SECOND APPELLATE DISTRICT



DIVISION THREE




>









In
re M.M., A Person Coming Under the Juvenile Court Law.


B243012



(Los Angeles County

Super. Ct. No. CK45164)




LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND FAMILY SERVICES,



Plaintiff and Respondent,



v.



SOPHIA C.,



Defendant and Appellant.










APPEAL
from orders of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Steven R. Klaif, Juvenile Court
Referee. (Pursuant to Cal. Const.,
art. VI, § 21.). Affirmed.

Maureen
L. Keaney, under appointment by the Court of Appeal, for Defendant and
Appellant.

John
F. Krattli, County Counsel, James M. Owens, Assistant County href="http://www.fearnotlaw.com/">Counsel and Navid Nakhjavani, Deputy
County Counsel, for Plaintiff and Respondent.

_______________________________________

>INTRODUCTION>

Appellant Sophia C. (mother) appeals
a juvenile court order terminating jurisdiction over her daughter, M.M., and
awarding custody to T.M. (father).
Mother contends the juvenile court erred in terminating jurisdiction
without affording her an opportunity to engage in href="http://www.mcmillanlaw.com/">reunification services. Mother argues the court erroneously ruled
under Welfare and Institutions Codehref="#_ftn1"
name="_ftnref1" title="">[1]
section 361.5(b)(10)href="#_ftn2"
name="_ftnref2" title="">[2]
because subdivision (b)(10) only applies when the juvenile court
previously ordered termination of reunification services for a sibling of the
child. We affirm.

FACTUAL AND
PROCEDURAL BACKGROUND



1. >Prior Child Welfare History

M.M. was born in April 2001. On April 18, 2001, the Department
of


href="http://www.fearnotlaw.com/">Children and Family Services (the Department) filed a juvenile dependency petition
alleging the juvenile court had jurisdiction over M.M. pursuant to
section 300(b).href="#_ftn3"
name="_ftnref3" title="">[3] The court sustained the petition finding that
mother’s use of drugs and alcohol endangered the child’s health and safety, and
father had a history of substance abuse that rendered him incapable of
providing regular care for the child.
The court placed M.M. with paternal grandfather and ordered that
reunification services be provided to both parents. On July 31, 2002, the court ordered home of parent - father for M.M.
and terminated family reunification services for mother. On March 4, 2003, the court terminated jurisdiction and issued a
family law order giving father full physical and legal custody of M.M.

2. >Father Agrees to Joint Custody

In approximately 2010, father
consented to joint custody with mother after it appeared mother had made some
progress. M.M. reported to father that
“things were fine at her mother’s” and that she wanted to stay with
mother. Father agreed that M.M. could
stay with mother during the week and spend the weekends with father.

3. >The Department’s Involvement

On February 28, 2012, the Department received a referral alleging general
neglect and emotional abuse by mother.
The caller reported that mother had been arrested for elder abuse of
maternal grandmother. Department social
workers thus began an investigation.
M.M. reported that she had seen mother hit maternal grandmother and that
mother also hit M.M. M.M. further stated
that she did not always have food to eat at mother’s place and that she only
bathed at father’s house because there were too many “bugs” in mother’s
apartment. Father reported that he was
unaware that mother had hit maternal grandmother and M.M, or that M.M. was not
eating at mother’s home.
M.M. stated that she did not tell father that mother hit her
because she was afraid the disclosure would upset mother.

4. >The Petition

On March 27, 2012, the Department filed a juvenile dependency petition
alleging the juvenile court had jurisdiction over M.M. pursuant to section 300,
subdivisions (a)href="#_ftn4" name="_ftnref4"
title="">[4]
and (b). Counts a-1 and b-1 alleged that
mother had engaged in “violent altercations against the child’s maternal
grandmother [] in the child’s presence” and that father knew of mother’s
violent conduct and failed to protect M.M.
Counts a‑2 and b‑2 alleged that mother “physically abused”
M.M. and that father knew of this physical abuse and failed to protect
M.M. Count b-3 alleged that mother
“established a filthy home environment” that endangered M.M.’s physical health
and safety. The petition was later
amended to eliminate references to father based on the Department’s finding
that father did not know that M.M. or maternal grandmother were being harmed.

On the same day the petition was
filed, the juvenile court found there was a prima facie case for detaining
M.M. The court ordered that she be
removed from mother’s custody and released to father. Mother was granted monitored visits.

5. The Department’s
Jurisdiction/Disposition Report


On April 20, 2012, the Department filed a jurisdiction/disposition
report. The Department found that the
evidence supported counts a-1, a-2, b-1, b-2 and b‑3 against mother. The report stated: “It is apparent that the mother has
unresolved anger issues, and has continued to utilize aggressive and/or violent
tendencies to control the maternal grandmother and the
child. . . . It also appears that there may be other
factors that are contributing to the mother’s aggressive behavior,
specifically, drug use and undiagnosed/untreated mental health disorder.” The report further stated that father
“want[s] full legal and physical custody,” that “[w]ith regards to services,
the father has indicated that he is not interested in receiving services from
DCFS and keeping the case open,” and that “father presents as capable and
willing to meet the child’s need[s] without DCFS intervention or support.”

6. >Jurisdictional and Dispositional Hearing

On July 13, 2013, the juvenile court held a
jurisdictional and dispositional hearing.
At the hearing, the Department’s counsel asked the court to terminate
jurisdiction under section 361.2.href="#_ftn5" name="_ftnref5" title="">>[5] The Department’s and father’s respective
counsel also argued the court could deny reunification services and terminate
jurisdiction under section 361.5(b)(10) because mother had failed to
reunify with M.M. in the prior child welfare proceedings. Mother’s counsel argued that section 361.2
did not apply because father was previously the custodial parent, and that
section 361.5(b)(10) did not apply because mother had made efforts to
ameliorate the problems that led to the filing of the original petition. The court indicated that it believed the
Legislature’s intent under section 361.2 was to give the court discretion
to offer reunification services even when the child was placed with a
previously custodial parent. The court
also stated that it was denying reunification services under
section 361.5(b)(10). The court
declared M.M. a dependent of the court and terminated jurisdiction with a
family law order giving father full physical and legal custody of M.M. The court indicated that both
section 361.2 and section 361.5 supported the ruling.href="#_ftn6" name="_ftnref6" title="">[6] Mother was granted monitored visits in a
therapeutic setting. Mother filed a href="http://www.mcmillanlaw.com/">timely appeal of the July 13 order.

>CONTENTIONS

Mother argues that she is entitled
to reunification services under section 361.5 and that the juvenile
court’s ruling that subdivision (b)(10) applied was an abuse of discretion
because this subdivision only applies when the juvenile court previously
ordered termination of reunification services for a sibling of the child.href="#_ftn7" name="_ftnref7" title="">[7]

>DISCUSSION

1. Standard
of Review


We review the juvenile court’s
denial of reunification services for abuse of discretion. (In re
Baby Boy H.
(1998) 63 Cal.App.4th 470, 474.) “ ‘The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be
deduced from the facts, the reviewing court has no authority to substitute its
decision for that of the trial court.’
[Citations.]” (>In re Stephanie M. (1994) 7 Cal.4th
295, 318-319.) There is no abuse of
discretion when the record contains substantial evidence supporting the
findings and the decision. (>In re Kevin F. (1989) 213
Cal.App.3d 178, 186.) “We must indulge
all reasonable inferences to support the decision of the juvenile court and
will not disturb its findings when there is substantial evidence to support
them.” (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.)

2. >Section 361.5

The juvenile court denied
reunification services to mother under section 361.5(b)(10). Section 361.5(a) provides that, unless
certain exceptions apply, “whenever a child is removed from a parent’s or
guardian’s custody, the juvenile court shall order the social worker to provide
child welfare services to the child and the child’s mother and statutorily
presumed father or guardians.” (§ 361.5,
subd. (a).) “[T]he section speaks in
terms of ‘child welfare services’ (§ 361.5, subd. (a)) which consist of
maintenance as well as reunification services (§ 16500 et seq.).” (Carolyn R.
v. Superior Court
(1995) 41 Cal.App.4th 159, 165.) Section 361.5(b) sets forth the circumstances
under which the court may deny reunification services to someone otherwise
entitled to receive them.

Section
361.5’s language “implies that the statute does not apply when, at the
disposition hearing, a child does not enter foster care, but is returned to a
parent.” (In re Pedro Z. (2010) 190 Cal.App.4th 12, 19)(noting that
section 361.5 provides time limits on the provision of family reunification
services “beginning with the dispositional hearing and ending 12 months after
the date the child entered foster care. . . . ” (Emphasis added.)) Accordingly, “section 361.5 is inapplicable
when at the disposition hearing a child is returned to the custody of a
parent.” (In re Pedro Z., supra, 190 Cal.App.4th at p. 19.) Here, M.M. was returned to father’s custody
at the disposition hearing, therefore, section 361.5 did not apply.href="#_ftn8" name="_ftnref8" title="">[8]

3. >Section 361.2

The juvenile court also denied
reunification services to mother under section 361.2. Mother does not make any arguments regarding
section 361.2 and thus has forfeited the issue on appeal. (Gunn v. Mariners Church, Inc. (2008) 167 Cal.App.4th 206, 217-218.) In any case, as explained below, the juvenile
court did not abuse its discretion in terminating jurisdiction and awarding
full custody to father under section 361.2.

Section
361.2 provides that “[w]hen a court orders removal of a child pursuant to
Section 361,href="#_ftn9" name="_ftnref9"
title="">[9]
the court shall first determine whether there is a parent of the child, with
whom the child was not residing at the time that the events or conditions arose
that brought the child within the provisions of Section 300, who desires to
assume custody of the child.”href="#_ftn10"
name="_ftnref10" title="">[10] (§ 361.2, subd. (a).) “If that parent requests custody, the court
shall place the child with the parent unless it finds that placement with that
parent would be detrimental to the safety, protection, or physical or emotional
well-being of the child.” (§ 361.2,
subd. (a).) “If the court places the
child with that parent[,] it may . . . order that
reunification services be provided to the parent or guardian from whom the
child is being removed.” (§ 361.2, subd.
(b)(3).) Alternatively, the court may
also “[o]rder that the parent become legal and physical custodian of the
child . . . [and] provide reasonable visitation by the
noncustodial parent. The court shall
then terminate its jurisdiction over the child.” (§ 361.2, subd. (b)(1).)

Here,
M.M. was residing with mother at the time the events arose that brought the
child within the provisions of section 300, namely, the physical abuse of M.M.,
mother’s abuse of maternal grandmother in the child’s presence, and mother’s
failure to maintain a clean home environment for M.M. In addition, father requested custody of
M.M. Accordingly, section 361.2 applied
because “there [was] a parent of the child, with whom the child was not
residing at the time that the events or conditions arose that brought the child
within the provisions of Section 300, who desire[d] to assume custody of the
child.” The court was required to place
M.M. with father unless it found that such placement “would be detrimental to
the safety, protection, or physical or emotional well-being of the child.” (§ 361.2, subd. (a).) Here, the petition’s allegations against
father were stricken. There was no
finding that placement of M.M. with him would be detrimental to her
well-being. Therefore, the conditions
set forth by section 361.2, subdivision (a) were met and subdivision (b)
provided the court with discretion to order that father become the sole legal
and physical custodian of the child and terminate jurisdiction.

Substantial
evidence supports the finding that M.M. was not residing with father when the
abuse occurred and that father requested custody of M.M. after the petition was
filed. Therefore, the court did not
abuse its discretion in terminating jurisdiction and awarding full custody to
father under section 361.2.

>DISPOSITION

The
order is affirmed.



NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS






CROSKEY,
J.



We concur:





KLEIN,
P. J.





KITCHING,
J.









id=ftn1>

href="#_ftnref1"
name="_ftn1" title="">[1]
All further statutory references
are to the Welfare and Institutions Code.



id=ftn2>

href="#_ftnref2"
name="_ftn2" title="">[2]
Section 361.5(b)(10) provides that “[r]eunification services need not
be provided to a parent or guardian described in this subdivision when the
court finds, by clear and convincing
evidence, . . . (10) That the court ordered
termination of reunification services for any siblings or half siblings of the
child because the parent or guardian failed to reunify with the sibling or half
sibling after the sibling or half sibling had been removed from that parent or
guardian pursuant to Section 361 and that parent or guardian is the same parent
or guardian described in subdivision (a) and that, according to the findings of
the court, this parent or guardian 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 or guardian.”



id=ftn3>

href="#_ftnref3"
name="_ftn3" title="">[3]
Section 300(b) provides a basis
for juvenile court jurisdiction when the child has suffered, or there is a
substantial risk the child will suffer, serious physical harm or illness as a
result of the parent's failure to adequately supervise or protect the child.

id=ftn4>

href="#_ftnref4"
name="_ftn4" title="">[4]
Section 300(a) provides that a child comes within the jurisdiction
of the juvenile court when the child has suffered, or there is a
substantial risk the child will suffer “serious physical harm inflicted
nonaccidentally upon the child by the child’s parent or guardian.”

id=ftn5>

href="#_ftnref5"
name="_ftn5" title="">[5]
Section 361.2 provides that “[w]hen a court orders removal of a child
pursuant to Section 361, the court shall first determine whether there is
a parent of the child, with whom the child was not residing at the time that
the events or conditions arose that brought the child within the provisions of
Section 300, who desires to assume custody of the child.” (§ 361.2, subd. (a).)



id=ftn6>

href="#_ftnref6"
name="_ftn6" title="">[6]
“Mr. Steinberg [father’s
counsel]: Reunification services are
discretionary, especially when we have an H.O.P. order. It’s delineated in 361.2 as giving the power
to close the case to a non-custodial parent.
It doesn’t make sense that the court would not have the power to close
it on a custodial parent. [¶] The Court:
I can’t see that was the intent of the legislature that the reunification
services would be discretionary if the court placed with a parent [sic] who was
previously non-custodial but wouldn’t have the same authority to deny them
because that parent was custodial. [¶] Mr. Steinberg: Right.
[¶] The Court: It doesn’t make sense. [¶]
Ms. Cottles [mother’s counsel]:
It may not make sense, but that is what it says. 361.2.
[¶] Ms. Siporen [Department’s
counsel]: Your honor, given the recent
-- [¶]
The Court: Then I’ll go on
361.5(b)(10). . . . The child is declared a dependent of
the court and jurisdiction is terminated with a family law order giving the
father sole legal and physical custody.
Counsel, has their appellate rights.
The court will be fascinated to see what the appellate court does on
that. But I don’t believe it was the
legislature’s intent to not make these services discretionary in this case.”

id=ftn7>

href="#_ftnref7"
name="_ftn7" title="">[7]
Although Mother did not raise this contention in the juvenile court, the Court
has discretion to consider the issue. (>In re C.T. (2002) 100 Cal.App.4th 101,
110 at fn. 7.)

id=ftn8>

href="#_ftnref8" name="_ftn8"
title="">[8] As section 361.5 did not
apply to the facts in this case, we need not express an opinion on the issue of
whether subsection (b)(10) restricts the mandatory provision of reunification
services when a parent has previously failed at reunification attempts with the
child at issue. (In re Gabriel K. (2012) 203 Cal.App.4th 188) (holding that
section 361.5(b)(10) authorized denial of reunification services to a
mother who previously failed to reunify with the child himself); (>In re B.L. (2012) 204 Cal.App.4th 1111)
(holding that the previous termination of reunification services for the same
child did not trigger the sibling exception to reunification services under
section 361.5(b)(10)).

id=ftn9>

href="#_ftnref9"
name="_ftn9" title="">[9]
Section 361 provides that “[i]n all cases in which a minor
is adjudged a dependent child of the court on the ground that the minor is
a person described by Section 300, the court may limit the control to be
exercised over the dependent child by any parent or
guardian . . . . ”



id=ftn10>

href="#_ftnref10"
name="_ftn10" title="">[10]
“ ‘[N]oncustodial’ is often
used as a shorthand term for ‘a parent of the child, with whom the child was
not residing.’ ” (>In re Catherine H. (2002) 102
Cal.App.4th 1284, 1289.) A
“noncustodial” parent is defined within the statute as one “with whom the child
is not residing at the time that the events or conditions arose that brought
the child within the provisions of Section 300.” (§ 361.2, subd. (e)(1)) (providing that
a social worker may place the child in “[t]he home of a noncustodial
parent as described in subdivision (a)”).
Although father had legal and partial physical custody of M.M. prior to
the filing of the petition, he was a “noncustodial” parent for purposes of
section 361.2 because M.M. was not residing with him at the time the abuse
occurred.








Description Appellant Sophia C. (mother) appeals a juvenile court order terminating jurisdiction over her daughter, M.M., and awarding custody to T.M. (father). Mother contends the juvenile court erred in terminating jurisdiction without affording her an opportunity to engage in reunification services. Mother argues the court erroneously ruled under Welfare and Institutions Code[1] section 361.5(b)(10)[2] because subdivision (b)(10) only applies when the juvenile court previously ordered termination of reunification services for a sibling of the child. We affirm.
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