In re I.H.
Filed 12/5/13 In re I.H. CA5
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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
In re I.H., a Person Coming
Under the Juvenile Court Law.
STANISLAUS COUNTY COMMUNITY
SERVICES AGENCY,
Plaintiff and
Respondent,
v.
R.H.,
Defendant and
Appellant.
F067231
(Super.
Ct. No. 516573)
THE COURT
name="_ftnref1" title="">*
APPEAL from
orders of the Superior Court of
County. Ann Q. Ameral, Judge.
Jamie A.
Moran, under appointment by the Court of Appeal, for Defendant and Appellant.
John P.
Doering, County Counsel and Carrie M. Stephens, Deputy County Counsel, for
Plaintiff and Respondent.
-ooOoo-
R.H. (father) appeals from the
juvenile court’s jurisdictional and dispositional orders declaring his infant
daughter, I.H., a dependent of the court pursuant to Welfare and Institutions
Code
protect) and subdivision (j) (abuse of sibling), and removing her from the
parents’ physical custody. Father
contends the juvenile court erred in denying him
insufficient evidence supports the court’s removal order. We reject father’s contentions and affirm the
orders.
FACTUAL AND PROCEDURAL
BACKGROUND
Father and B.F. (mother) have had
three children together, including I.H. Due
to ongoing issues with substance abuse, father and mother failed to reunify
with their two older children, H.H. and E.H., and their parental rights were
terminated in April 2011. The children’s
adoptions were finalized in October 2011.
In late January 2013, mother went
into labor at the Public Safety Center, where she had recently been incarcerated
on drug-related charges. When she gave
birth to I.H., mother tested positive for amphetamines and THC. I.H. was born prematurely at 34 weeks and placed
in the NICU due to her low weight of four pounds, 11 ounces.
Father tested positive for
methamphetamine at the time of I.H.’s birth. He reported that, although mother smoked
marijuana occasionally, he had no concerns about her drug use. Father also reported that he served a
two-year prison term for possession of a controlled substance, and that he was
released from prison in May 2012.
Despite their prior child welfare
history, mother and father continued to abuse drugs even while caring for
mother’s son, D.C., who was born in May 2011.
These
February 5, 2013. I.H. and D.C. were
taken into protective custody and placed together in a foster home.
In its jurisdiction/disposition
report filed on March 1, 2013, the Stanislaus County Community Services Agency
(agency) noted that father was given a referral for parenting and individual
counseling at Sierra Vista Child and Family Services (Sierra), and for an AOD
assessment. Father did not keep his
scheduled appointment for the AOD assessment.
Father’s intake appointment with Sierra was scheduled for March 13,
2013.
The agency recommended the juvenile
court deny reunification services to both parents under section 361.5,
subdivision (b)(10) and (11) on the ground that, following their failure to
reunify with E.H. and N.H., mother and father did not ameliorate the issues
which had led to those children’s dependencies.
The agency reported that father had failed to address and continued to
have criminal issues related to his substance abuse problems. He was recently incarcerated at the
Stanislaus County Honor Farm for failing to comply with his probation.
As to mother, the agency noted that
she failed to reunify with her two older children after she received extensive voluntary
family maintenance and reunification services.
While she would have periods of sobriety, she would relapse. She continued to use drugs and tested
positive for amphetamines and THC at the time of I.H.’s birth.
On April 8, 2013, the matter came
on for a contested jurisdictional/dispositional hearing. Among other things, mother testified she was
currently living at the Redwoods Family Center (Redwoods) and had been there
since March 19, 2013. Mother was
referred to Redwoods at the conclusion of her AOD assessment on March 18, 2013.
Mother was also taking parenting classes
through Sierra, and was waiting for her assessment to attend the First Step
program. In the meantime, she was
participating in an interim group at First Step.
Mother suffered from
diagnosed with bipolar disorder, extreme anxiety, and extreme depression. When she was not on her medications, she
would start using controlled substances again.
Mother had been taking Depakote, Zoloft, and Abilify to address her
diagnoses, but stopped taking the medications when she became pregnant with
I.H. because she kept hearing they caused birth defects.
Mother told the emergency social
worker that she had arranged for her father, G.F. (grandfather), to care for
D.C. after her current relapse and it was her intention to leave D.C. with
grandfather for as long as she needed to take care of her problems. Mother wanted both of her children to be
placed with grandfather.
Grandfather also testified,
confirming he wanted the children placed with him. He also testified he had provided 80 percent
of D.C.’s care during the past year and a half.
The juvenile court accepted father’s
offer of proof that, prior to going into his current in-custody status the
previous Friday, he had an appointment scheduled with Nirvana. Father was unable to attend the appointment due
to his in-custody status. Father’s
attorney later indicated that father’s current incarceration was due to a
weapons violation of his probation.
At the conclusion of the hearing, the
juvenile court found the allegations in the petition to be true, asserted
dependency jurisdiction over I.H. and D.C., and ordered the children removed
from the parents’ custody. The juvenile
court denied reunification services to father pursuant to section 361.5,
subdivision (b)(11), but granted reunification services to mother despite the
agency’s contrary recommendation. The
court explained, in essence, that mother had made reasonable efforts to treat
the problems that led to the removal of her two older children but failed because
her mental health issues were not adequately addressed or understood at that
time. Now that mother was addressing not
only her substance abuse issues, but also her
court concluded, it was in the children’s best interests to provide her with
reunification services.
DISCUSSION
father reunification services.
The juvenile court is required to order family
child is removed from the custody of his or her parent
convincing evidence that the parent is described by any
of 15 exceptions set forth in section 361.5, subdivision
(b). (§ 361.5, subds. (a) &
(b)(1)-(15).) “[T]he Legislature, by
enacting section 361.5, subdivision (b), has discerned ‘… it may be fruitless
to provide reunification services under certain circumstances.’†(In re
Joshua M. (1998) 66 Cal.App.4th 458, 467.)
On review, we employ the substantial evidence
burden of proof. (In re
Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)
Section 361.5, subdivision (b)(11) allows the juvenile
court to deny a parent reunification services if the court finds by clear and
convincing evidence that “the parental rights of a parent over any sibling or
half sibling of the child had been permanently severed, and … this parent has
not subsequently made a reasonable effort to treat the problems that led to
removal of the sibling or half sibling of that child from the parent.â€
Here, father does not dispute there
is substantial evidence he lost parental rights to his older children, E.H. and
N.H., and failed to make a reasonable effort to treat the problems that led to
their removal, and therefore substantial evidence supports the juvenile court’s
order denying him reunification services.
Instead, father appears to be arguing the court erred because it was in
I.H.’s best interests to offer him reunification services. We disagree.
Section 361.5, subdivision (c)
provides a juvenile court shall not order reunification services for a parent
described in subdivision (b)(11) unless it finds by clear and convincing
evidence that reunification services are in the child’s best interests. A reviewing court will not disturb a court’s
ruling in a dependency proceeding “‘“unless the trial court has exceeded the
limits of legal discretion by making an arbitrary, capricious, or patently
absurd determination [citations].â€â€™â€ (
318.)
Father has not shown the juvenile
court abused its discretion. At the
combined jurisdictional/dispositional hearing, father presented no evidence
showing it would be in I.H.’s best interests to order reunification services
for him. His offer of proof merely
established that he scheduled an intake appointment with a treatment program,
but was prevented from attending the appointment because he was incarcerated. In other words, father only showed he made a preliminary
and unsuccessful attempt to obtain treatment for his longstanding drug problem. On this record, we are unable to conclude the
juvenile court exceeded the limits of its discretion by not finding it would be
in I.H.’s best interests to offer reunification services to father.
We also reject father’s argument
that, because the juvenile court ordered reunification services for mother, it
was in I.H.’s best interests for the court to order services for father. Father presents no authority for the
proposition that, when reunification services are offered to one parent, it is
inherently or necessarily in a child’s best interests to offer services to the
other parent. Indeed, in a slightly
different context, it has been held that, “[a] court has discretion to
terminate services for one parent even when ordering services for the other parent.†(In re
Gabriel L. (2009) 172 Cal.App.4th 644, 651 [“‘In deciding whether to
terminate the services of one parent who has failed to participate or make
progress toward reunification, the court is not constrained by a consideration
of the other parent’s participation in services.’ [Citation.]â€].) (Ibid.)
There is no basis in the record to
conclude the juvenile court abused its discretion by ordering reunification services
for mother but not for father. Mother is
not in a similar position to father. As
already discussed, he does not dispute there is substantial evidence he failed
to make a reasonable effort to treat the problems that led to the removal of
I.H.’s siblings. On the other hand, the
juvenile court found there was evidence mother made such efforts but failed
because her mental health issues were not sufficiently recognized and addressed
at the time.
Father’s argument that it would be
beneficial to offer him services because mother is likely to reunify with I.H. is
based purely on speculation. In light of
mother’s history of relapses it is not a foregone conclusion that she will be
able to overcome her persistent substance abuse problems and reunify with her
children.
However, even assuming mother is
likely to reunify with her children, this does not establish I.H. would
necessarily benefit from father being provided with reunification
services. Father’s argument assumes he
would be able to make effective use of such services and continue to be part of
mother’s life. In light of his utter failure
to address his problems in the past, there is reason to believe father would
not make good use of services were they to be provided, and mother’s successful
reunification with her children might very well depend on her successfully
distancing herself from father.
In short, the juvenile court did
not abuse its discretion in not finding that, despite the finding under section
361.5, subdivision (b)(11), it would be in I.H.’s best interests to offer
services to father.
II. The juvenile court
properly ordered I.H. removed from his custody.
Section 361, subdivision (c),
permits the removal of a child from the custody of his or her parent if the
juvenile court finds that “[t]here is or would be a substantial danger to the
physical health, safety, protection, or physical or emotional well-being†of
the child if he or she were returned home, and “there are no reasonable means
by which the [child]’s health can be protected without removing†the child from
the parent’s custody. (§ 361, subd.
(c)(1).) We review a juvenile court’s
dispositional findings for substantial evidence. (In re
Cole C. (2009) 174 Cal.App.4th 900, 916.)
In general, a juvenile court’s “jurisdictional findings are prima facie
evidence that the child cannot safely remain in the home. [Citation.]
The parent need not be dangerous and the child need not have been
actually harmed for removal to be appropriate.
The focus of the statute is on averting harm to the child. [Citations.]â€
(Id. at p. 917.)
Father does not challenge the
sufficiency of the evidence supporting the juvenile court’s jurisdictional
findings. The same evidence supports the
court’s order removing I.H. from father’s custody. Father tested positive for methamphetamine at
the time of I.H.’s birth. He had an
extensive history of substance abuse which resulted in the termination of his
parental rights to his two older children. Despite the effect on himself and his family,
he continued to use controlled substances and was incarcerated for a probation
violation at the time of disposition. Under
these circumstances, the juvenile court could reasonably conclude that father’s
substance abuse issues continued to pose a substantial risk of harm to I.H. and
that such risk could only be obviated by removing her from his physical
custody. Therefore, the juvenile court’s
removal order was supported by substantial evidence.
We find unpersuasive father’s
argument that insufficient evidence supports the juvenile court’s removal order
because the record showed grandfather was available as a caretaker and thus, according
to father, “[t]he children could have safely been maintained with mother, with
a court order that the maternal relatives be available to assist with their
care.†We agree with the agency that the
issue of grandfather’s suitability as a caretaker and ability to assist mother is
irrelevant to the question of whether the removal order was proper as to father,
which is the real issue before this court.
However, the record does not support father’s argument in any event.
Father’s argument rests on the
assumption that grandfather was, at the time of disposition, both willing and
able to take placement of I.H. and her half-brother D.C. It is true that grandfather testified he
wanted the children to be placed with him.
However, he also acknowledged he had not yet applied for placement,
although the agency had requested that he submit an application and he
understood he was required to complete the application before placement could
be made at his home.
On appeal, father faults the agency
for discouraging grandfather from applying for placement. In this regard, grandfather testified
regarding a conversation he had with someone with the agency suggesting he was
too old to care for the children. But the
record also reflects that grandfather’s girlfriend, in whose home he lived, independently
contacted the agency, reporting that grandfather had recently been admitted to
the hospital for a possible stroke, and stating grandfather was too old and in
no condition to take the children.
name="_ftnref3" title="">[2]
Whether or not the agency
ultimately approves grandfather for placement of the children, the record
clearly indicates he was not in a position immediately to receive I.H. into his
home or provide the assistance father contends would allow I.H. to be safely
maintained there without the necessity of a formal order removing her from her mother’s
custody. In our view, sufficient
evidence supports the juvenile court’s order removing I.H. from
assertions to the contrary.
The orders are affirmed.
name="_ftn1" title="">* Before Poochigian, J., Gomes, A.P.J.
and Peña, J.
name="_ftn2" title="">[1] All further statutory references to the Welfare and
Institutions Code unless otherwise specified.
