In re P.S.
Filed 1/9/13 In
re P.S. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THIRD
APPELLATE DISTRICT
(Sacramento)
In re
P. S., a Person Coming Under the Juvenile Court Law.
SACRAMENTO COUNTY
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Plaintiff and
Respondent,
v.
Pa. S.,
Defendant and
Appellant.
C070378
(Super. Ct. No.
JD229516)
Father, Pa.
S., appeals the dispositional order in which the
services with his daughter, the minor.
He contends the juvenile court erred in denying him
Institutions Code section 361.5 without having made a removal order or stating
the factual basis for that order.
RELEVANT
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In 2009, the minor and her siblings
were placed into protective custody
as a result of severe beatings inflicted on them by father, father’s threats to
kill the children and mother, and father’s long-term substance abuse problem.
the violence he inflicted on mother and the children. The children were removed from the home and
the parents participated in family reunification services, including
father. The children were ultimately
returned to their parent’s home and jurisdiction over the children was
terminated in November 2010.
In January 2012, a new section 300
petition was filed, alleging father cut mother with a sword, attempted to stab
the minor, and then stabbed himself repeatedly in the abdomen. Father was incarcerated and the minor
remained in mother’s custody. The court
granted mother a temporary restraining order.
Mother also reported she was filing for divorce. Father admitted the sword incident and
indicated he wanted to again participate in reunification services.
The
Human Services (DHHS) concluded father’s behavior demonstrated he had not
benefitted from the previously provided reunification services. Since father was now out of the home, DHHS
recommended the minor remain in mother’s custody and mother receive family
maintenance services, while father be denied reunification services under the
bypass provisions of section 361.5.
The juvenile court sustained the
petition and found it was in the minor’s best interest to leave her in mother’s
home and custody with family maintenance services. The juvenile court found father had an
“extensive, abusive and chronic use of drugs or alcohol and [had] resisted
treatment . . . or refused to comply with a program of drug or
alcohol treatment . . . on at least two occasions.†The juvenile court also found father was
incarcerated and providing him reunification services would be detrimental to
the minor. The court adopted the DHHS
findings “to remove the child from the father, not from the mother†and found
“having removed the child from the father the bypass provisions apply and the
court will adopt the findings and orders as to the father to bypass services
for him . . . .†The DHHS
report does not contain findings regarding removal from father.
DISCUSSION
Father argues that the court
improperly applied the reunification bypass provisions of section 361.5, because
it did not make a proper finding “for removal of the child from the custody of
the father.†Father, however,
acknowledges “the facts of this case would easily provide grounds for a
properly memorialized finding . . . .†We agree that the juvenile court erred in
failing to state reasons for removal and in applying the bypass provisions of
section 361.5; however, we find these errors harmless.
A. Failure to State Findings Supporting
Removal
After the juvenile court finds a
child within its jurisdiction, the court must conduct a dispositional hearing
at which it determines where the child will live while under the court's
supervision. As relevant in this case, a
“dependent child may not be taken from the physical custody of his or her
parents or guardian or guardians with whom the child resides at the time the
petition was initiated, unless the juvenile court finds clear and convincing
evidence†(§ 361, subd. (c)) that “the child would be at substantial risk
of harm if returned home and there are no reasonable means by which the child
can be protected without removal.†(
837, 849; § 361, subd. (c)(1).)
Section 361, subdivision (d), requires the court state the facts on
which the removal decision is based.
Here, the juvenile court ordered the
minor removed from father’s custody, but did not state the facts upon which it
based its removal decision. It purported
to adopt the findings of the social worker’s report, but that report did not
contain findings regarding removal. In
general, on appeal we “indulge all reasonable inferences favorable to the
judgment.†(In re J.S. (2011) 196 Cal.App.4th 1069, 1078.) But, where the Legislature has required an
explicit statement of reasons for a decision, this “doctrine becomes potentially
subversive,†depriving the Legislative requirement of force. (Ibid.) Thus, where the court is required to
explicitly state the facts underlying its decision, “the doctrine of implied
findings may be given limited scope.†(
Accordingly, in this case, we will not imply a statement of reasons and
the court’s failure to state the basis of its decision to remove the minor was
error.
Finding error, however, does not end
the inquiry. Rather, before we reverse a
judgment, “it must appear that the error complained of ‘has resulted in a
miscarriage of justice.’ (Cal. Const.,
art. VI, § 13.) Reversal is
justified ‘only when the court, “after an examination of the entire cause,
including the evidence,†is of the “opinion†that it is reasonably probable
that a result more favorable to the appealing party would have been reached in
the absence of the error.’ (
818, 836; see 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000)
Reversible Error, § 7, p. 450.) A
reasonable probability for these purposes does not mean an absolute probability; the likelihood that the error affected the
outcome need not be greater than the likelihood that it did not. [Citation.]
The test is satisfied, and prejudice appears, if the case presents ‘an
equal balance of reasonable probabilities.’
(People v. Watson, supra,
46 Cal.2d at p. 837.)†(
at pp. 1078-1079.)
Here, father had a significant
history of domestic violence against
the minor, her siblings, and mother. He
had a long standing substance abuse problem from which he had failed to
rehabilitate and his violence increased when under the influence of alcohol. The incident which led to this dependency proceeding
involved father stabbing mother, attempting to stab the minor, and stabbing
himself several times. There was no
indication in the record father had made any progress in addressing either his
substance abuse or domestic violence problems or reducing the risk they posed
to the minor. In spite of his previous
participation in reunification services, he continued to engage in domestic
violence and substance abuse. Father did
not contest removal at the trial level
and does not argue on appeal that removal from his custody is not
supported. In fact, he admits the facts
“easily provide grounds†for removal. We
appreciate that a statement of reasons for a decision can improve the
adjudicatory process by influencing the court’s actual reasoning. However, in this case based on this record,
we see no reasonable probability that compliance with the statutory requirement
of stating the factual basis for removal would have resulted in a different
outcome. (In re J.S., supra, 196 Cal.App.4th at pp. 1079.) Thus, the error was not prejudicial.
B. Father Not Entitled to Reunification
Services
When a child is removed from the
parent’s home, reunification services may be offered to the parent, “ ‘in
an effort 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. [Citation.]’
[Citations.] Section 361.5,
subdivision (b) sets forth certain exceptions — also called reunification
bypass provisions — to this ‘general mandate of providing reunification
services.’ [Citations.]†(In re
Allison J. (2010) 190 Cal.App.4th 1106, 1112.) “When the court determines a bypass provision
applies, the general rule favoring reunification is replaced with a legislative
presumption that reunification services would be ‘ “an unwise use of
governmental resources.†’
[Citations.]†(
Father argues the juvenile court
erred in applying the bypass provisions of section 361.5, as the minor was not
properly removed from his custody. We
agree with father that the court’s application of the bypass provisions of
section 361.5 was in error, but not for the reason father claims. Nor do we find this error requires
reversal. Father’s argument is premised
on the misconception that he was entitled to reunification services under
section 361.5, subdivision (a). He was
not.
Section 361.5, subdivision (a),
requires: “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.†(Italics added.) “ ‘Child welfare services’ â€
include “a continuum of services, including emergency response services, family
preservation services, family maintenance services, family reunification
services, and permanent placement services . . . .â€
(§ 16501, subd. (a).) The
term “child welfare services†does not necessarily imply reunification
services. (In re A.L. (2010) 188 Cal.App.4th 138, 144.) Instead, both reunification services and
family maintenance services are a subset of the term “child welfare services.â€
Reunification services are “designed
to provide time-limited foster care services to prevent or remedy neglect,
abuse, or exploitation, when the child cannot safely remain at home, and needs
temporary foster care . . . .â€
(§ 16501, subd. (h).) These
services “shall only be provided when
a child has been placed in out-of-home care, or is in the care of a previously
noncustodial parent under the supervision of the juvenile court.†(§ 16507, subd. (b), italics added; see
also In re A.C. (2008)
169 Cal.App.4th 636, 650, 652 [the reunification provisions of section
361.5 are inapplicable in the absence of a disposition ordering a placement
with someone other than a former custodial parent].) Here, the minor was in her mother’s custody
and home when the petition was initiated and was continued in her mother’s
custody and home at disposition. As
such, reunification services were not necessary, appropriate, or
authorized. (In re Pedro Z.
(2010) 190 Cal.App.4th 12, 20; In re A.L., supra,
188 Cal.App.4th at p. 145.) The
juvenile court satisfied the requirement of section 361.5, subdivision (a), by
ordering family maintenance services for mother. “[W]hen
the child remains in a parent's home, . . . the court is not
concerned with reunification, but in determining ‘whether the dependency should
be terminated or whether further supervision is necessary.’ [Citations.]
. . . The goal of dependency proceedings—to reunify a child
with at least one parent—has been met when, at disposition, a child is placed
with a former custodial parent and afforded family maintenance services.†(Pedro
Z., supra, 190 Cal.App.4th at p. 20.) That is precisely what happened in this
case. Because mother was a custodial
parent at the initiation of the proceedings and the juvenile court ordered that
custody remain vested in her at the disposition hearing, the juvenile court was
not authorized to order reunification services for father. To the extent the juvenile court’s reference
to the bypass provisions of section 361.5 constituted error, it was harmless.
DISPOSITION
The dispositional order of the
juvenile court is affirmed.
BLEASE ,
J.
We
concur:
RAYE ,
P. J.
NICHOLSON ,
J.
name="_ftn1" title="">[1] Undesignated statutory
references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] Minor’s siblings are now
over 18 years old and are not involved in the current proceedings.
