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NOT TO BE PUBLISHED IN THE OFFICIAL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opinion has not been certified for publication or ordered published for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