In re N.F.
Filed 8/01/13 In re N.F. CA1/4
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opinion has not been certified for publication or ordered published for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
FOUR
In re N.F.,
a Person Coming Under the Juvenile Court Law.
SAN
FRANCISCO HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
I.F.,
Defendant and Appellant.
A136637
(San
Francisco County
Super. Ct.
No. JD12-3146)
Appellant
I.F. (father) challenges the juvenile court’s order accepting jurisdiction over
his toddler daughter N.F.
name="_ftnref1" title="">[1]
and denying him reunification services. He contends that order must be reversed
because it was improperly based on the fact that he was incarcerated. We disagree and affirm.
I.
Factual and Procedural
Background
Eighteen-month-old N.F. came to the
attention of respondent San Francisco Human Services Agency (Agency) in
May 2012 when it received a referral claiming that N.F.’s mother, J.R.
(who is not a party to this appeal), was a known drug dealer and that N.F. was
being neglected.
title="">[2] An investigation ensued, and it revealed
scant evidence that father had any meaningful role in N.F.’s life. Mother identified appellant as N.F.’s father,
and D.T. reported that father was incarcerated “somewhere in Kentucky.†The investigation found that N.F.’s primary
caretaker was father’s cousin, D.T., who N.F. called “ ‘mom’ †and
who lived with mother to help care for N.F.
Two other paternal cousins apparently also helped care for N.F., and
mother agreed to a safety plan that called for N.F. to stay with them and
D.T. Relatives believed mother was
dealing drugs and had mental-health issues.
The investigation disclosed that Mother had six older children, none of
whom were living with her at the time, and three of whom previously had been
dependents of the juvenile court.
As
a result of the investigation, the Agency filed a
under section 300. The petition
contained several allegations against mother under subdivision (b)
(failure to protect), including that she was unable to protect N.F. because of
substance-abuse and mental-health problems and that she had failed to provide
for N.F.’s medical needs. The petition
also contained allegations against father:
one under subdivision (b) that father’s ability to care for N.F.
was impaired because of his criminal history and because he was incarcerated,
and another under subdivision (g) that father lacked the ability to
provide support for N.F. because his whereabouts and ability to care for N.F.
were unknown. The juvenile court ordered
N.F. detained and placed her with the paternal relatives who had been caring
for her. The court later ordered that
appellant was the presumed father.
Father
demurred to the petition, arguing that the pleading contained no facts
demonstrating that N.F. suffered or was at a substantial risk of suffering harm
by him or that he was unable to provide for her care. Father also submitted a declaration
stating: “Although I am currently
incarcerated, I can arrange for members of my family to provide for the care of
my child, N[.F]. In this regard, I have
two sisters, D[.T. and B.B.][
name="_ftnref3" title="">[3]]
who can provide a home and care for N[.F.]â€
Father
was located at a federal prison in Kentucky, where he apparently had been
incarcerated since a few months after N.F.’s birth. D.T. reported that he was not scheduled to be
released until December 16, 2017.
Although the Agency wrote to father to ask about the status of his
incarceration, it did not hear back from him as of the time it filed a
disposition report in June 2012. A
criminal-background check revealed that father had six felony convictions from
1999, 2001, 2004, 2007, and 2011 in addition to one misdemeanor conviction and
24 arrests. The offenses included
assault with force likely to cause serious injury, numerous firearm-possession
violations, and a domestic-violence
conviction.
Paternal
relatives reported that father had been “in and out of prison for most of his
adult life.†Mother reported that father
had not been present at N.F.’s birth because he was incarcerated at the time,
and had only been part of their daughter’s life for three months, but she
stated that she had a “good†relationship with father, and he supported her
“through letters and phone calls.†The
Agency reported that father had “not been involved in the minor’s life.†It did not arrange for visitation, and it
recommended in its June 2012 disposition report that reunification services for
father be bypassed because he was incarcerated out of state.
Father
contacted the social worker on July 11, 2012, and stated that he was
“supportive†of his daughter’s placement with her current caregivers, who were
willing and able to provide the structure and consistency N.F. needed. He also said that he was participating in
parenting-education and anger-management classes while in prison and could be
released as early as 2015. The Agency
nonetheless continued to recommend that reunification services be bypassed
because father “has not been in the minor’s life and will be incarcerated until
the earliest 2015, [and] thus would not benefit from family reunification
services.â€
The
combined jurisdictional/dispositional hearing was held on August 31,
2012. Father’s counsel tried
unsuccessfully to reach father by telephone so father could participate in the
hearing from prison. The hearing
proceeded in his absence. The Agency’s
social worker testified about her July telephone call with father in which
father expressed his support for N.F. to remain with his relatives. The social worker acknowledged on
cross-examination that the Agency had not filed a dependency petition when
father was first incarcerated a few months after N.F.’s birth. When asked, “[I]s it fair to say that dad was
a nonoffending parent, meaning he was in prison and he wasn’t doing anything to
harm the child?,†the social worker responded, “Yes.â€
At
the conclusion of the hearing, the juvenile court entered its order. As to mother, the court sustained the
failure-to-protect allegations under section 300, subdivision (b)
because mother had failed to provide for N.F.’s medical needs by not ensuring
that N.F. was properly immunized, had an impaired ability to care for N.F.
because of her mental-health problem, and had a long child-welfare history
based on allegations of neglect.
As
to father, the court agreed with his counsel that the count for not providing
for support under section 300, subdivision (g) should be stricken because
it simply alleged that father’s whereabouts were unknown, which was untrue at
the time of the hearing.
name="_ftnref4" title="">[4] But the court sustained the count for failure
to protect under section 300, subdivision (b), after amending it to
read that “father’s ability to care for the child is impaired in that he has a
criminal history, is currently incarcerated, and will not be released before
2015.â€
The
court adjudged N.F. a dependent child and continued her placement with
relatives. It ordered reunification
services for mother but denied them for father, finding by
would be detrimental to N.F. since she was under the age of three and father
was not scheduled to be released from prison any sooner than 2015. Father timely appealed.
II.
Discussion
Father
argues that insufficient evidence supports the juvenile court’s finding that
N.F. is a child described by section 300, subdivision (b).
jurisdiction if the child has suffered, or there is a substantial risk the
child will suffer, serious physical
harm or illness caused by the parent’s failure or inability to adequately
supervise or protect the child, or the failure to adequately supervise or
protect the child from the conduct of the child’s custodian with whom the child
has been left, or the willful or negligent failure to provide the child with
food, clothing, shelter, or medical treatment.
“A jurisdictional finding under section 300, subdivision (b)
requires ‘(1) neglectful conduct by the parent in one of the specified
forms; (2) causation; and (3) “serious physical harm or illness†to
the minor, or a “substantial risk†of such harm or illness.’ [Citation.]
‘Subdivision (b) means what it says. Before courts and agencies can exert
jurisdiction under section 300, subdivision (b), there must be
evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness.’ [Citation.]â€
(In re Noe F. (2013) 213
Cal.App.4th 358, 366, original italics.)
“On
appeal, in reviewing a challenge to the sufficiency of the dependency court’s
jurisdictional findings, our power begins and ends with a determination as to
whether substantial evidence exists, contradicted or uncontradicted, supporting
the dependency court’s determinations.
We review the evidence in the light most favorable to the dependency
court’s findings and draw all reasonable inferences in support of those
findings. [Citations.] Thus, we do not consider whether there is
evidence from which the dependency court could have drawn a different
conclusion but whether there is substantial evidence to support the conclusion
that the court did draw.
[Citations.]†(
court’s jurisdictional finding.
Father
claims that the “mere fact of [his] incarceration†could not provide the basis
for finding jurisdiction under section 300, subdivision (b). We find this argument unpersuasive because
father’s incarceration was not the
sole reason supporting the juvenile court’s order; it was also based on
father’s demonstrated inability to adequately protect N.F. from mother’s
impaired ability to care for their daughter.
An argument similar to father’s was made and rejected in
Cal.App.4th 470. In that case, a social
services agency removed children from their mother’s care because of
“deplorable home conditions.†(
the father was incarcerated, he was unable to adequately protect the children
from those conditions or to supervise them, thus supporting a finding under
section 300, subdivision (b).
(James C. at
p. 483.) The same is true of father
in this case. Like the facts in
presented here that father ever made inquiries about his child’s care or
supervision before dependency proceedings were initiated, and it was the social
service agency that made the arrangements for the child’s current placement. (Ibid.)
Father
claims, without citation to the record, that he “was able to arrange for the
care of the minor, as evidenced by [her] placement with [his] extended family,
who had always been the minor’s protector and provider in any event.†He further contends that it is “reasonable to
assume†that he knew of the role his relatives were playing in N.F.’s life, and
he suggests that he “would have been able to testify about these facts†had his
attorney been able to reach him by telephone at the hearing. In other words, father asks this court to
infer that he played a meaningful role in arranging for N.F.’s care simply
because N.F. was being cared for by his relatives. We decline to do so. No evidence was presented that father
actually played any such role, only that he approved of the arrangement when he
discussed it with the social worker after dependency proceedings had been
initiated. His declaration said nothing
about any involvement he had in ensuring that his relatives cared for N.F. and
instead just stated that he was currently
able to arrange care for the minor with his “two sisters,†who are actually his
cousins.
Moreover,
although father’s trial counsel attempted to reach father by telephone so that
he could participate telephonically in the August 31 hearing, counsel stated at
that time that he did not intend to call father as a witness. Thus, and contrary to father’s argument on
appeal, there is no reason to believe that father would have testified or offered
additional evidence at the hearing even if he had been able to participate in
it.
We
also do not find it particularly consequential that the Agency, as father puts
it, “conceded†that father was “the non-offending parent.†Father’s argument is apparently an oblique
reference to section 361, subdivision (c)(1), which provides that the
juvenile court shall allow a “nonoffending parent†to retain physical custody
of a dependent minor so long as the parent presents an acceptable plan that the
parent will be able to protect the child from future harm. But simply because the social worker agreed
that father was “in prison and he wasn’t doing anything to harm the child†when
the dependency petition was filed does not mean that the Agency considered
father to be a “non-offending parent†for all purposes. This is especially apparent since the Agency
unambiguously alleged that father’s ability to care for the minor was
impaired. Father also emphasizes that he
was not listed as an offending parent in any prior referrals regarding
N.F. But this point similarly does
little to advance father’s cause because father had no meaningful role in most
of N.F.’s life.
The
cases upon which father relies are easily distinguishable, both factually and
legally. In In re Noe F., supra,
213 Cal.App.4th 358, the minor was taken into protective care after her mother
was arrested, and the juvenile court found that the minor was a child described
by section 300, subdivision (b).
(Noe F. at
pp. 361-363.) The appellate court
reversed. It agreed with the mother that
“incarceration, without more, cannot provide a basis for jurisdiction.†(Id.
at p. 366.) It concluded that there
was no basis to assert jurisdiction because the mother had identified two
suitable placements for her daughter, one of whom agreed to care for the
child. (Id. at pp. 362, 364, 366.)
Here, by contrast and as discussed above, there is no evidence in the
record that father arranged for N.F.’s care when he was incarcerated. To the contrary, it is clear that N.F.
continued to live with mother, who was incapable of caring for her daughter
without the assistance of paternal relatives.
Simply stated, the juvenile court did not rule against father solely
because he was incarcerated; it ruled against him because evidence demonstrated
his “inability to supervise the child adequately,†which is a sufficient basis
to find jurisdiction under section 300, subdivision (b). (E.g., In
re Alexis H. (2005) 132 Cal.App.4th 11, 16 [“While in prison,
[father] cannot care for or supervise his children, rendering his imprisonment
enough for the court to exercise jurisdiction under section 300,
subdivision (b)â€].)
inapposite because it dealt solely with section 300, subdivision (g),
which provides that jurisdiction is appropriate where, among other
circumstances, a parent has been incarcerated and cannot arrange for his or her
child’s care. (Aaron S. at pp. 204, 207-212.) Aaron S.
held that the proper focus of subdivision (g) is whether a parent is
unable to arrange for a child’s care at the time of the jurisdictional hearing,
not whether he or she failed to do so at some previous point in time. (Aaron S.
at p. 210.) Here, the count against
father under subdivision (g) alleged that his whereabouts were unknown,
and it was stricken. Father acknowledges
that the juvenile court struck this count, but he contends that the court
failed to address “the more substantive issue†of his present ability to care
for his daughter. Whatever relevance
such evidence has in making a jurisdictional finding under
subdivision (g), we agree with the juvenile court and respondent that the
focus is different when making a finding under subdivision (b). “While an incarcerated parent can avoid
jurisdiction under section 300, subdivision (g) by arranging for his or
her child’s care [citations], the same is not true of a parent whose acts or
omissions have led to jurisdictional findings under section 300, subdivision (b).†(In re
A.A. (2012) 203 Cal.App.4th 597, 607.)
Sufficient evidence supports a jurisdictional finding as to the
subdivision (b) count against father in light of his inability to protect
N.F. from the conditions that led to the initiation of dependency
proceedings. (In re James C., supra,
104 Cal.App.4th at p. 483.)
B. Denial
of Reunification Services.
Father
claims that the order denying him reunification services must be set aside
emphasis on his incarceration. “We
examine the court’s determination denying reunification services for
substantial evidence. [Citations.]†(In re
James C., supra, 104
Cal.App.4th at p. 484.)
The
juvenile court denied services to father under section 361.5,
subdivision (e)(1), which provides that the juvenile court shall order
reunification services for an incarcerated parent “unless the court determines,
by clear and convincing evidence, those services would be detrimental to the
child.†In determining such detriment,
the court shall consider such factors as the child’s age, the degree of
parent-child bonding, the length of the parent’s sentence, and the degree of
harm to the child if services are not offered.
(§ 361.5, subd. (e)(1); In
re James C., supra, 104
Cal.App.4th at p. 485.)
The evidence here, as in
reunification services based on application of the factors for determining
detriment to a child pursuant to section 361.5,
subdivision (e)(1).†Like in
exceeded the 12-month period of reunification services that could be provided
(§ 361.5, subd. (a)), father has a long history of incarceration,
there is no evidence that father has a significant relationship with the child,
and there is no evidence that the child would be harmed from not receiving
reunification services. (
Father
does not provide any compelling legal or
factual arguments to the contrary.
His counsel all but conceded below that, once the juvenile court
sustained the jurisdictional allegation against father, father’s lengthy prison
sentence precluded the provision of reunification services, stating “there’s
always hope, though I don’t have a factual basis upon which to hang that hope
on.†On appeal, father claims that
neither the Agency nor the juvenile court “engaged in [a] meaningful
examination of the factors†set forth in section 361.5,
subdivision (e), but he does not explain how a more “meaningful†analysis
of the relevant factors—which were addressed in the Agency reports considered
by the court—would have led to a different result.
Father’s
legal argument points to the statutory requirements for reunification services
for incarcerated parents where such services are in fact ordered.
(§ 361.5, subd. (e)(1)(A)-(D); Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010-1011
[where reunification services ordered for incarcerated parent, such services
must be reasonable].) This authority,
however, is inapplicable in a case such as this one in which the juvenile court
found that services would be detrimental to the minor, and thus should not be
offered in the first place.
Father
hints that the juvenile court somehow miscalculated the maximum length of time
that reunification services could be provided in this case to suggest that it
could have extended beyond father’s earliest possible release date of 2015—two
years after the dispositional hearing.
Section 361.5, subdivision (a)(1)(B) provides that
court-ordered reunifications services shall be provided in cases involving a
minor under the age of three for no longer than 12 months “from the date
the child entered foster care as provided in
Section 361.49 . . . .†Section 361.49, in turn, provides that a
child shall be deemed to have entered foster care on the earlier of the date
the jurisdictional hearing was held or the date that is 60 days after the
date on which the child was initially removed from the physical custody of his
or her parent. Father claims that N.F.
was not “placed in foster care, as such,†because she remained with relatives,
and thus “the concerns underlying the time limitations of [the statute] were
not prevalent in this case.†Father,
however, offers no authority for his proposition that the reunification period
would be longer for N.F. because she was placed with relatives.
Father
cites In re Kevin N. (2007) 148
Cal.App.4th 1339, 1344, which held that reunification services for an
incarcerated parent should only be denied if they would be detrimental to the
minor—not just futile because of the length of incarceration. But the juvenile court here specifically
found that reunification services would be detrimental to N.F. Both N.F.’s counsel and county counsel
stressed that N.F. needed a permanent plan in place before 2015. Establishing a permanent plan promptly is
consistent with the Legislature’s goal of obtaining permanency and stability as
soon as possible for dependent minors, and the failure to do so can be harmful
to the child. As explained in a leading
juvenile dependency treatise, “While providing services to an incarcerated
parent is required in most circumstances, there are many cases in which the
provision of such services has little or no likelihood of success
the child . . . .
This is especially true when the
parent will be incarcerated longer than the maximum time periods for
reunification efforts . . . . Indeed, to attempt services in such
circumstances may be setting everyone up for failure, including the parent,
agency, and child. Thus, in cases such
as these, it may be possible to show that providing services to the
incarcerated parent would be detrimental to the child since it would delay permanency with no likelihood of success.†(Seiser & Kumli, Cal. Juvenile
Courts Practice and Procedure (2012 ed.) Disposition Hearing,
§ 2.129[2][b], pp. 2-390-2-391, italics added.)
Finally,
we note that the resolution of this case does not necessarily mean that
father’s parental rights will be terminated.
As county counsel represented below in response to father’s concern that
appellant could lose parental rights, “Really this case comes down to mom. If mom reunifies and dad gets out, he is
still going to—he’ll be fine. Because if
he has no requirements, there is no reason he can’t come into [N.F.]’s
life.†In the meantime, the juvenile
court did not err when it denied father reunification services since
finding that they would be detrimental to N.F.
III.
Disposition
The juvenile court’s dispositional
order is affirmed.
_________________________
Humes,
J.
We concur:
_________________________
Ruvolo, P. J.
_________________________
Rivera, J.
name="_ftn1" title="">
In accepting jurisdiction, the court found N.F. to be a child described by
Welfare and Institutions Code section 300, subdivision (b). All further statutory references are to the
Welfare and Institutions Code.
name="_ftn2" title="">[2]
The referral followed a home-invasion robbery at mother’s residence that
occurred when mother was away, but when others, including N.F. and her
caretaker, were present and ordered at gunpoint to the floor. One of the allegations against mother in the
dependency petition related to the robbery, and news and police reports about
it were discussed in or attached to the Agency’s detention report. At the beginning of the combined
jurisdictional/dispositional hearing, the juvenile court granted mother’s
hearsay objections to the news and police reports and later found that the
Agency had not met its burden of proving the allegation related to the
robbery. We mention the robbery to
provide context as to why the Agency initiated dependency proceedings, but we
do not rely on the excluded evidence in evaluating the juvenile court’s
jurisdictional finding.
