A.C. v. Super. Ct.

Filed 1/19/10 A.C. v. Super. Ct. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Wilfred J. Schneider, Jr., Judge. Petition denied.

Robin D. Edmond for Petitioner.

No appearance for Respondent.

Ruth E. Stringer, County Counsel, and Dawn M. Messer, Deputy County Counsel, for Real Party in Interest.

INTRODUCTION

Petitioner A.C. (Mother)[1] seeks review of an order of the trial court denying her reunification services with respect to Z.B. (the minor). Because the denial was statutorily authorized and there is no clear and convincing evidence that services would be in the minors best interest, we deny the petition. We also hold that the trial court did not err in denying visitation to Mother pending the hearing scheduled pursuant to Welfare and Institutions Code section 366.26.[2]

STATEMENT OF FACTS

Mother gave birth to the minor in November 2007, while incarcerated in state prison and arranged for her mother, D.B., to care for the minor. However, in April 2009, D.B. was arrested for attacking her boyfriend with a machete. Furthermore, it was learned that D.B. herself had a substantial history with child protective services related to neglect, physical abuse, and emotional abuse with respect to both Mother and a youthful aunt and uncle. There had also been allegations that Mother had been sexually abused by her grandfather.

Also, Mother had previous dependency proceedings involving her two older children. In 1997, it was alleged that Mother was using drugs and left her child unattended . . . for weeks at a time. That child became a dependent of the court, Mothers parental rights were terminated, and the child was eventually adopted. In 2004, it was alleged that Mother had left her other child with a babysitter and disappeared, and that she had substance abuse problems. That child was placed with her father; their whereabouts are unknown.

While incarcerated, D.B. informed the social worker that she did not know Mothers whereabouts and had not seen her for about six months. D.B. reported that Mother had declined the opportunity to take the [minor] back into her care once she was paroled from prison.

As a result, the Kern County Department of Human Services[3] placed the minor in protective custody. The social worker subsequently learned that Mother had been arrested in December 2008 and convicted of petty theft with a prior under Penal Code section 666. Mothers criminal history included a juvenile adjudication for vehicle theft in 1998 and adult convictions for misdemeanor terrorist threats (2002), misdemeanor cruelty to a child (2004), possession of stolen property (2005), possession of drug paraphernalia (2006), and vehicle theft (2007).

Mother did appear at the jurisdictional hearing and provided two additional names as possible fathers after the man named on the birth certificate (W.B.) was agreed not to be the father.[4] At the time, Mother was in state prison as a result of her most recent felony conviction. The court found the minor to be a dependent child pursuant to section 300, subdivisions (b) (failure to protect/provide), and (j) (abuse or neglect of sibling). Because it found that the legal residence of Mother and the minor was in San Bernardino County, the Superior Court of Kern County transferred the matter to the Superior Court of San Bernardino County for disposition.

The San Bernardino County Child and Family Services (CFS) report prepared for the dispositional hearing in August 2009, reflected that Mother admitted having used methamphetamine starting at age 15. Mother said that she has attended a Proposition 36 drug treatment program, but did not finish the program due to being incarcerated. Mother claimed that she has been sober since 2007.[5]

The minor was reported as having adjusted fairly well to her foster placement although the CFS speculated that her previous environment may have been very chaotic because when first placed, the minor would yell and scream most of the day. She still exhibited troubling behaviors such as self-hurting, hitting, pinching, hair pulling, and storing food in her mouth. Overall, the minors former social worker confirmed that there had been many positive changes in her behavior since being moved to her current foster home.

Based on Mothers previous history of failing to reunify ( 361.5, subds. (b)(10), (b)(11)), CFS recommended that reunification services not be offered to her. The report also noted that when she was released from prison, Mother made no attempt to take responsibility for the minors care during the short period before she was again incarcerated.

Mother did provide CFS with the names of two potential caretakers for the minor. When contacted, one said that he would not be able to care for the minor, and the other did not return calls. Mother admitted that she chose these people because she believed that they would allow her to become part of the minors life after her release from prison.

Mother waived her presence at the dispositional hearing eventually held on October 15, 2009. Counsel informed the trial court that Mother expected to be released in January 2010 and that she had expressed amenability to receiving (and presumably participating in) reunification services. However, the trial court followed CFSs recommendation and also found that visitation would be detrimental to the minor. At the end of the hearing, CFS informed the court that the current caretaker had requested that the minor be moved.[6]

In this petition, Mother argues that the trial court abused its discretion in denying her reunification services because there was sufficient evidence that reunification was in the minors best interests, and also that there was insufficient evidence that visitation would be detrimental. We disagree on both points.

DISCUSSION

Although section 361.5, subdivisions (b)(10) and (b)(11), permit the court to deny reunification services where a parent has failed to reunify with a sibling of the subject child or parental rights have been terminated with a sibling, the court has discretion to provide services if it finds by clear and convincing evidence that to do so would serve the minors best interests. ( 361.5, subd. (c); In re Ethan N. (2004) 122 Cal.App.4th 55, 65.)

The only evidence to which Mother points, is the fact that the minors caretaker had asked that she be removed. She reasons that the removal must have been due to the negative behaviors, which we have described above, and speculates that the placement had failed and that the behaviors would probably recur. Even if she is correct, we cannot accept the conclusion that reunification with Mother would be a better option.

The minor evidently developed those behaviors while in the custody of D.B., a neglectful and abusive custodian by history with whom Mother had nevertheless entrusted her child. It would be gross speculation to conclude, or even suggest, that Mother, who has never previously managed to successfully care for her children (and who has not previously evinced any interest in caring for the minor), could provide a safer and more nourishing environment even with extensive reunification services. (It is to be recalled that such services failed with respect to one of Mothers other children.)

While it is unfortunate that the minors first foster parents apparently proved unable to cope with her difficult and challenging behavior, the proposition that Mother would be better able to do so certainly does not constitute clear and convincing evidence that reunification should be attempted.

Mothers second contention also fails. It is quite true that when services are denied pursuant to section 361.5, subdivisions (b)(10) or (b)(11), the court retains discretion to continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child. ( 361.5, subd. (f).) However, the court does not have to find that visitation would be detrimental; its discretion rests in the power to allow visitation unless visits would be detrimental. In considering how to exercise this discretion, the court can consider whether the childs best interests would be served by visits, but need not make a finding of positive detriment in deciding not to permit visits. (In re J.N. (2006) 138 Cal.App.4th 450, 456-459.) Accordingly, the sufficiency of the evidence to support any such finding is irrelevant.

We also note that Mother has not been having visits with the minor during the pendency of these proceedings due to her incarceration, and that she rarely exercised herself of the opportunity during the time when she was not incarcerated. Once this has been established, it becomes readily apparent that the best interests of a minor with emotional and behavioral issues could hardly be served by sporadic visits with a woman who is essentially a stranger to her. The trial court did not abuse its discretion in refusing to order visitation.

DISPOSITION

The petition for extraordinary writ is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P. J.

McKINSTER

J.

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[1] The father had not been identified as of the time of the dispositional hearing; he is not a party to these proceedings.

[2] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[3] The minor resided with D.B. in Bakersfield.

[4] One of these menJ.F.was subsequently excluded by DNA testing. Mother could identify the other possible biological father only as Jose, and no effective search could be made for him.

[5] It was noted that she has, however, been incarcerated for most of that period.

[6] The caretakers also had a toddler foster child who had been the subject of the minors attacks.