V.F. v. Super.
Filed 2/6/13 V.F. v. Super. Ct. CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
V.F.,
Petitioner,
v.
SUPERIOR
COURT OF MONTEREY
COUNTY,
Respondent;
MONTEREY COUNTY DEPARTMENT OF
SOCIAL & EMPLOYMENT SERVICES,
Real Party in
Interest.
No. H039044
(Monterey
Super. Ct.
No. J46695)
V. F. is
the father of J.R., who was born in August of 2012, and was adjudged a
dependent of the court, and removed from the custody of his parents on November 26, 2012. The court denied Father
determined reunification was not in the best interest of the child.
Father
filed a petition for an extraordinary writ seeking a reversal of the court’s
decision.
Statement of the Facts and Case
In August
of 2012, J.R. was born one month premature, and tested positive for cocaine and
opiates. J.R. was placed in the neonatal
intensive care unit of Salinas Valley
Memorial Hospital
for care, where he was expected to remain for several weeks. On August
28, 2012, the Monterey County Department of Social and Employment
Services (Department) filed a petition pursuant to Welfare and Institutions
Code section 300, subdivision (b).
name="_ftnref1" title="">[1] The petition alleged Mother had a criminal
and substance abuse history that impaired her ability to care for J.R. In addition, the petition alleged Mother had
a daughter who was removed from her custody and released for adoption.
With regard
to Father, the petition alleged he initially lied to the social worker and told
her he had no criminal history or addictions.
Upon investigation, the social worker discovered that Father was a
registered sex offender for molesting his younger sister, and was currently on
parole.
The
court found J.R. was a child described in section 300, and committed him to the
Department’s custody.
The
Department filed the jurisdiction and disposition report on October 5, 2012, recommending that
the section 300, subdivision (b) petition be sustained, J.R. be adjudged a dependant
of the court, and reunification services for both Mother and Father be
denied. With regard to Father, the
Department recommended that Father be denied reunification services, because of
his prior criminal history of sexual offenses against his younger sister, and
the inherent risk of placing a nonverbal infant in the care of a registered sex
offender.
In addition
to the notations of the social worker in the report, the court also received a
memorandum from licensed
psychologist Michael Beck, who reported that he interviewed Father in order
to assess the matter. Dr. Beck found
Father had no concern for J.R’s heroine exposure while in utero, and
“maintained a smiling and humorous demeanor altogether incongruent with his
family’s grave situation.†In addition,
Dr. Beck stated that case workers who had dealt with Father found him
manipulative, disrespectful, and “rageful.â€
During the
hearing on November 26, 2012,
Father testified that he was incarcerated in Monterey
County awaiting sentencing on his
parole violation. He testified that his
prior sex conviction would not prevent him from taking good care of J.R., and
he had taken care of another son in the past.
Father said he loved his son, and wanted him back.
At the
conclusion of the hearing, the court adopted the findings of the Department in
the jurisdiction and disposition report, and denied reunification services to
Father. Father filed a petition for an
extraordinary writ seeking a reversal of the court’s decision.
Discussion
In his writ
petition, Father argues the court abused its discretion in denying him
reunification services, and that he showed by
reunification with him was in the best interest of J.R.
A petition
for extraordinary writ may be brought in the Court of Appeal to challenge a
juvenile court’s decision to terminate reunification services and to set a
permanency planning hearing pursuant to section 366.26. (See Cal. Rules of Court, rules 8.450, 8.452,
5.600.) The writ procedure, as outlined
in the statute and implemented in the rules, enables a party to obtain
expeditious review of the juvenile court’s decision. (Steve
J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.)
Whether appellate review is
sought in a writ proceeding or in an appeal, we apply the general rule that the
trial court’s judgment or order is presumed correct and error must be
affirmatively shown. (
557, 564.) We review an order following
a review hearing for substantial evidence.
(In re Brooke C. (2005) 127
Cal.App.4th 377, 382 [order under § 361.5].)
The party challenging the order “has the burden to demonstrate that
there is no evidence of a sufficiently substantial character to supportâ€
it. (In
re Geoffrey G. (1979) 98
Cal.App.3d 412, 420 [proceedings under predecessor statute].)
“In juvenile cases, as in
other areas of the 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.†(In re Katrina C. (1988)
201 Cal.App.3d 540, 547.)
Because the
child was removed from the parents’ custody in this case, the court was
required to make orders regarding reunification services. (Cynthia
D. v. Superior Court (1993) 5 Cal.4th 242, 248.) “Until permanency planning, reunification of
parent and child is the law’s paramount concern.†(Judith
P. v. Superior Court (2002) 102 Cal.App.4th 535, 546; see §§ 361.5, subd.
(a); 366.21, subd. (g)(1).) “When the
state removes children from their parents, it is obliged to make reasonable
efforts to reunify the family.†(
49.) However, under section 361.5,
subdivision (b)(12), reunification services need not be provided to a parent
when the court finds by clear and convincing evidence that the parent of the
child had been convicted of a violent felony, as defined in Penal Code section
667.5, subdivision (c). In addition,
“[b]ecause reunification services are a benefit, not a constitutional
entitlement, the juvenile court has discretion to terminate those services at
any time, depending on the circumstances presented.†(In re
Jesse W. (2007) 157 Cal.App.4th 49, 60.)
In
evaluating the evidence in this case, the court found that reunification
services would not be in the best interest of J.R. The court adopted the findings in the
Department’s jurisdiction and disposition report, and found, by clear and
convincing evidence: “[t]hat the parent or guardian of the child has been convicted
of a violent felony, as defined in subdivision (c) of Section 667.5 of the
Penal Code.†The court noted that
although father visited the child while he was in the hospital, and expressed a
desire to care for him, Father was a registered sex offender, and had engaged
in domestic violence and sexual violence toward his sister.
In support
of his petition, Father argues reunification services would be in the best
interest of J.R., because he raised one of his other children for 6 years until
he became incarcerated, he visited J.R. in the hospital every day, he completed
52 weeks of domestic violence counseling, and two parenting classes. Father also cites In re Allison J. (2010) 190 Cal.App.4th 1106 (Allison J.), presumably because he asserts similar arguments as the
father did in that case. However, in
reunification was in the best interest of his child, despite his assertion that
he was compliant with his parole requirements, and had demonstrated good
parenting skills in the past. The court
in Allison J. affirmed the trial
court’s denial of the father’s request for reunification services. (Allison
J., supra, 190 Cal.App.4th at p. 1118.)
Here, the
court correctly denied reunification services for Father. The court found by clear and convincing
evidence that Father had been convicted of a serious felony, making bypass of
reunification services appropriate (§ 361.5, subd. (b)(12)). Moreover, there
was not clear and convincing evidence that reunification services would be in
J.R.’s best interest. (§ 361.5, subd.
(c)) Father was incarcerated at the time
of the disposition hearing awaiting sentencing for a parole violation on his
sexual molestation conviction, and he is a registered sex offender who
committed violent sexual abuse on his 8-year-old sister. The fact that J.R. is an infant who cannot
speak makes his reunification with Father especially risky because of Father’s
prior sexual abuse history. Finally,
Father has a history of domestic violence and substance abuse. Father’s visitation of J.R. while he was in
the hospital, and his completion of domestic violence and parenting classes is
not sufficient to establish clear and convincing evidence that reunification
would be in J.R.’s best interest.
Disposition
The
petition for extraordinary writ is denied.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA,
J.
are to the Welfare and Institutions Code.
