Jason K. v. Super.
Filed 8/27/12 Jason K. v. Super. Ct. CA1/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIVE
JASON K.,
Petitioner,
v.
THE SUPERIOR
COURT OF CONTRA
COSTA COUNTY,
Respondent;
CONTRA
COSTA COUNTY
CHILDREN & FAMILY SERVICES et al.,
Real Parties in Interest.
A135817
(Contra
Costa County
Super. Ct.
No. J11-01505)
Petitioner
Jason K. is incarcerated, awaiting trial on homicide charges. In this dependency
proceeding, he seeks writ relief from an order denying him reunification
services with his daughter, Isabella K.
We find no error and deny the writ.
I. Background
Isabella
was born in March 2011, and lived with her parents, Jason K. (Father) and
Stephanie E. (Mother). Isabella’s
older half-sibling, John, was determined to be a dependent child in a prior
proceeding initiated by the
County Children & Family Services (Agency). John was removed from Mother’s care in
April 2010.
title="">[1] After Isabella was born, the Agency received
referrals for domestic violence between Mother and Father in May and
June 2011. In a June incident,
Father reportedly pushed Mother to the ground while she was holding
Isabella. Couples counseling was
unsuccessful and Father moved out in August 2011. Mother obtained a
behalf of Isabella and herself. In
September 2011, Father surrendered himself to police on a homicide
charge. It is alleged that Father, his
older brother, and a third person conspired to murder a member of a rival
gang. He remains incarcerated awaiting
trial.
On
October 31, 2011, Mother was stopped by police for making unsafe lane
changes while John and Isabella were in the car. Officers found a gun in Isabella’s diaper bag
and bullets in Mother’s purse, which Mother said she possessed for protection
from Father’s girlfriend. Police wrote
that Mother was uncooperative and seemed emotionally unstable. A further investigation disclosed that the
gun belonged to Mother’s then-current boyfriend (not Father) and had previously
been stored in Mother’s and Isabella’s residence.
On November
2, 2011, the Agency filed a juvenile
dependency petition on behalf of Isabella under Welfare and Institutions
Code section 300, subdivisions (b) (failure to protect) and (g)
(failure to support).
name="_ftnref2" title="">[2] The petition alleged: “b-1 Despite the provision of ongoing
services to address domestic violence and mental health issues, [Mother] placed
[Isabella] at risk of serious physical harm by carrying a gun and ammunition
with her while the child was in her care. [¶] b-2 [Mother’s]
. . . ongoing mental health issues . . . impair[ed] her
judgment, placing [Isabella] at risk of physical harm. [¶] b-3 [Father] has
engaged in serious domestic violence against [Mother] in the presence of
[Isabella], as recently as June 2011 . . . , placing the
child at risk of harm. [¶] . . . [¶] g-1 [Father] is
incarcerated for gang-affiliated activity and homicide related charges and is
unable to care for [Isabella].†Isabella
was detained and Father was recognized as Isabella’s presumed father.
At the
jurisdiction hearing, Mother pled no contest to an amended petition and Father
submitted without presenting evidence.
The court sustained the petition.
The allegations involving Father (b-3 & g-1) were sustained without
amendment.
In a
February 2012 disposition report, the Agency recommended denial of
reunification services for both parents.
As to Mother, the Agency recommended bypass pursuant to
section 361.5, subdivision (b)(10) because the juvenile court had
recently terminated services in John’s case and Mother had not made a
reasonable effort to treat the problems that led to John’s removal. As to Father, the Agency recommended bypass
of services pursuant to section 361.5, subdivisions (b)(9)
(abandonment) and (e)(1) (incarceration) (hereafter, sections 361.5(b)(9) and
361.5(e)(1)). The district attorney’s
office reported that Father remained in custody, his preliminary hearing was
scheduled for May 2012, a likely trial date was sometime in 2013, the case
against Father was strong, and if all charges and enhancements were sustained
Father faced a sentence of between 25 years in prison and 50 years to life in
prison. “Based on the current charge of
homicide with the enhancements, it is clear that reasonable services offered to
the father would be detrimental to the child as the child is only 10 months old
and the father reports that he has not seen the child since September of
2011. There has been little degree of
parent-child bonding to consider and the nature of his crime suggests the
process by which he may mitigate the charges against him will far exceed
6 months . . . .â€
At the
initial disposition hearing on February 1, 2012, Father disputed the
allegations made against him in the disposition report and argued that he
should be presumed innocent of the criminal
charges that were pending against him.
He initially denied that he was contesting the bypass recommendation,
but then joined Mother’s request for a contested hearing “so that services are
provided to him.†The matter was
continued for a contested disposition hearing in May.
A
May 2012 supplemental report stated that Mother alleged three crimes had
been committed against her in February and April by females associated with
Father’s gang and friends of Father’s former girlfriend: burglary of her home, arson of her car, and a
physical attack. Mother was in the
process of seeking a restraining order against some of the alleged
perpetrators. The supplemental report
extensively discussed a request by Father’s mother for relative placement of
Isabella and recommended against placement because Father’s mother had a
difficult relationship with Mother, because of the grandmother’s own extensive
criminal history (prohibiting placement without an exemption) and dependency
history, and because placement would separate Isabella from her brother, with
whom she had established a sibling bond.
At the
May 2012 contested disposition hearing, the Agency withdrew its
recommendation that Father be denied services under
section 361.5(b)(9). Father
“submitted†on the issue of the Agency’s bypass recommendation and presented no
evidence at the hearing.
name="_ftnref3" title="">[3] Mother presented evidence contesting the
recommendation that she be denied services.
Father participated in the hearing only with respect to his mother’s
request for relative placement, which he supported and both Mother and the
Agency opposed. The only comment made
during closing arguments about bypass for Father was the Agency’s comment that
“there’s really not been any evidence with regard to father who appeared to
probably be incarcerated for quite some time.â€
Father expressly waived formal reading of the court’s findings and
recommendations. A hearing under section
366.26 to terminate parental rights and to determine a permanent placement for
Isabella was scheduled for September 19, 2012.
Both parents filed a notice of intent to file a writ petition. Mother failed to file a petition and is not a
party to this proceeding.
II. Discussion
Father
argues there was insufficient evidence to support the trial court’s denial of
reunification services pursuant to sections 361.5(b)(9) or 361.5(e)(1). We affirm the court’s bypass order.
As a
preliminary matter, the Agency argues Father forfeited or waived any challenge
to the bypass order because he “submitted†at the disposition hearing without
offering evidence or argument on the issue.
We disagree. Although a party who
submits on an agency’s recommendation
for disposition essentially endorses the recommendation and thereby waives any
right to challenge it, a party who submits on the record simply “acquiesces as to the state of the evidence yet
preserves the right to challenge it as insufficient to support a particular
legal conclusion.†(In re Richard K. (1994) 25 Cal.App.4th 580, 589–590.) Here, Father simply “submitted on that issue,
your Honor, the bypass.†At the
February 2012 hearing, he made clear that he was contesting the bypass
recommendation. The Agency appeared to
understand his submission as on the record and not on the recommendation. In closing argument at the bypass hearing,
the Agency’s counsel did not state that Father had agreed to the bypass
recommendation; rather, it noted that no evidence had been presented on the
issue at the hearing and then reiterated the basis for its bypass
recommendation, that Father likely would be incarcerated for a long time. We conclude Father’s submission is most
reasonably construed as a submission on the record, not a submission on the
Agency’s recommendation. Therefore, the
sufficiency of the evidence issue is not forfeited or waived.
Although
Father argues the bypass order was not supported by section 361.5(b)(9),
that issue is irrelevant because the Agency withdrew its recommendation for
bypass under section 361.5(b)(9) and the court’s order was clearly
premised on section 361.5(e)(1).
Father claims that the record is “bereft of clear and convincing
evidence that the alleged bypass provisions of [section 361.5(e)(1)] apply to
[Father].
We have no
difficulty in concluding that substantial evidence supports the court’s bypass
order under section 361.5(e)(1).
law, the power of an appellate court asked to assess the sufficiency of the
evidence begins and ends with a determination as to whether or not there is any
substantial evidence, whether or not contradicted, which will support the conclusion
of the trier of fact. All conflicts must
be resolved in favor of the respondent and all legitimate inferences indulged
in to uphold the verdict, if possible.
Where there is more than one inference which can reasonably be deduced
from the facts, the appellate court is without power to substitute its
deductions for those of the trier of fact.
[Citation.]†(
540, 547.)
Section
361.5(e)(1) provides in relevant part:
“If the parent or guardian is incarcerated or institutionalized, the
court shall order reasonable services unless the court determines, by clear and
convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall
consider the age of the child, the degree of parent-child bonding, the length
of the sentence, the length and nature of the treatment, the nature of the
crime or illness, the degree of detriment to the child if services are not
offered . . . , the likelihood of the parent’s discharge from
incarceration or institutionalization within the reunification time limitations
described in subdivision (a), and any other appropriate factors.
. . . Reunification services are subject to the applicable time
limitations imposed in subdivision (a).â€
Here, Isabella
was just over one year old at the time of the May 2012 disposition
hearing. Father had not lived with
Isabella since August 2011, and he had not even seen her since September 2011,
when she was only six months old.
Indeed, he was enjoined from seeing her through August 2014 by court
order. There was no evidence that
Isabella had a strong bond with her Father, and a more than reasonable
inference is that she did not. Moreover,
evidence of Father’s prior domestic violence and Mother’s testimony that she
had been attacked by persons associated with Father’s gang (possibly with
Father’s mother’s involvement) supported an inference that Father had ongoing
violent proclivities and associations that could directly or indirectly expose
Isabella to violence should he remain involved in her life.
Additionally,
our legislature has recognized that time is of the essence in establishing
permanence for children under three years of age. (Tonya
M. v. Superior Court (2007) 42 Cal.4th 836, 846–847.) Because of Isabella’s young age, the
presumptive time limit on reunification services was six months, and the outer
time limit absent exceptional circumstances was 12 months. (See § 361.5, subd. (a)(1)(B).) Based on uncontested information provided to
by the district attorney’s office, Father was incarcerated on charges of
gang-related homicide, the trial for which would not begin until 2013 at the
earliest, and for which he faced a sentence of at least 25 years if
convicted. As the Agency’s disposition
report noted, “There has been little degree of parent-child bonding to consider
and the nature of his crime suggests that the process by which he can mitigate
the charges against him will far exceed 6 months at minimum.†Thus, it was extremely unlikely if not
entirely impossible that Father would be able to reunify with Isabella within
the statutory time provided.
In sum, the
court could reasonably find by clear and
convincing evidence that granting reunification services to Father would be
detrimental to Isabella because their parent-child bond was not strong,
associating with Father tended to expose Isabella to violence, and
reunification was virtually impossible.
Based on this detriment finding, the court properly denied Father
reunification services under section 361.5(e)(1).
III. Disposition
The writ
petition is denied on the merits. The
request for a stay is also denied.
Because the section 366.26 hearing is set for September 19, 2012, our
decision is final as to this court immediately.
(Cal. Rules of Court, rules 8.452(i), 8.490(b)(3).)
_________________________
Bruiniers,
J.
We concur:
_________________________
Jones, P. J.
_________________________
Needham, J.
A135817
reunification services, the Agency recommended returning John home in
October 2011, although it remained concerned about Mother’s ability to
manage her parenting responsibilities and viewed Mother as emotionally
unstable. The incident that gave rise to
this dependency petition apparently caused that recommendation to be withdrawn.
are to the Welfare and Institutions Code unless otherwise noted.
