In re N.K. CA5 ( 2021 )

Filed 6/17/21 In re N.K. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re N.K., a Person Coming Under the
Juvenile Court Law.
STANISLAUS COUNTY COMMUNITY F082037
SERVICES AGENCY,
(Super. Ct. No. JVDP-20-000120)
Plaintiff and Respondent,
v. OPINION
S.K.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Stanislaus County. Ann Q.
Ameral, Judge.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Boze, County Counsel, and Maria Elena Ratliff, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
Newborn N.K. was adjudged a dependent of the juvenile court, removed from the
home of S.K. (mother), and placed with his previously noncustodial parent, B.M. (father),
pursuant to Welfare and Institutions Code section 361.2.1 The juvenile court ordered
father to receive family maintenance services and exercised its discretion not to order any
services for mother. Mother appeals the juvenile court’s dispositional orders, contending
the court erred by not ordering her to be provided with services under section 361.2,
subdivision (b)(3). Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2020, the Stanislaus County Community Services Agency (agency) was
alerted mother had given birth to N.K. N.K. appeared clean and healthy, aside from
having jaundice, and had no marks indicative of abuse, but the agency was concerned
because mother had recent child welfare history concerning her two older children. In
October 2016, N.K.’s half sibling, Z.J., was removed from mother’s care due to his
having multiple fractures and significant injuries consistent with physical abuse and
because of domestic violence between mother and Z.J.’s father. Mother was granted
reunification services, but services were subsequently terminated, and in January 2018,
mother’s parental rights as to Z.J. were terminated. In October 2018, N.K.’s half sibling,
N.S., was removed from mother’s care as a newborn because he tested positive for illicit
substances at the time of his delivery and because of domestic violence and substance
abuse by mother and N.S.’s father. Mother was granted reunification services, which
were also subsequently terminated. At the time of N.K.’s birth, a section 366.26 hearing
was scheduled for N.S.’s case.
The social worker investigating the referral concerning N.K. met with mother at
the hospital after N.K.’s birth and informed mother a safety plan would need to be made,
1 All further undesignated statutory references are to the Welfare and Institutions
Code.
2.
pending a Team Decision Meeting (TDM) due to her child welfare history. Mother
suggested to the social worker that N.K. could be discharged under the care of the
supervisor at the facility where mother lived, “JMJ Maternity.” The social worker
contacted the JMJ supervisor who agreed to have N.K. discharged under her care until a
TDM could be completed.
A few days later, mother was permitted, due to a misunderstanding by JMJ
Maternity, to leave the facility with N.K., unsupervised. This raised concerns with the
agency because mother was not supposed to be with N.K. unsupervised, and had chosen
to take N.K., who had jaundice, into the community during the COVID-19 pandemic.
When the social worker raised these concerns with mother, she did not show any concern
for N.K.’s health and asserted he was fine. The agency determined a protective custody
warrant should be sought before the TDM, and on June 8, 2020, the court issued one and
N.K. was placed into protective custody. At the TDM the following day, mother named
father as an alleged father of N.K.
The agency’s addendum to detention report dated June 16, 2020, indicated that
within the previous year, mother had been discharged from residential substance abuse
treatment and excused from drug court2 for noncompliance. In January 2020, mother had
submitted an intentionally diluted drug test sample as part of one of the other dependency
cases. In February 2020, mother was discharged from another service provider. Mother
had begun re-engaging in services by entering an outpatient drug treatment program in
March 2020.
On June 16, 2020, the agency filed a first amended section 300 petition on behalf
of N.K., alleging he came within the juvenile court’s jurisdiction under section 300,
subdivisions (b)(1) (failure to protect) and (j) (abuse of siblings). In addition to mother’s
2 At the time dependency proceedings were initiated, mother was on felony
probation. Mother subsequently violated her probation and was sentenced to home
“confinement” starting August 28, 2020.
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past child welfare history with N.K.’s two half siblings, a number of allegations were
made, including mother’s history of substance abuse and being discharged from drug
court in November 2019 due to positive tests, as well as her documented history with
domestic violence relationships and lengthy criminal history. The petition alleged mother
reported she experienced domestic violence with father in November 2019 in the form of
yelling and threats. It was further alleged mother took N.K. out in June 2020, when she
was not supposed to be with him unsupervised and did not follow up on his diagnosis of
jaundice.
At the detention hearing on June 17, 2020, the juvenile court ordered N.K.
detained from mother, focusing on the fact she took N.K. out into the community when
he was three days old and jaundiced in the midst of the COVID-19 pandemic.
Mother continued to engage in voluntary services. On July 1, 2020, she completed
a two-session intake appointment for parenting, individual counseling, and a domestic
violence assessment. On August 26, 2020, she completed a five-month outpatient
substance abuse treatment program, testing negative for all illicit substances throughout
the treatment period. Upon graduation of her treatment program, the facility
recommended mother enter a sober living facility, but mother moved to the Salvation
Army instead. A representative from mother’s outpatient program reported to the social
worker that mother had told them she would need permission from the probation
department before entering a sober living facility, but when the social worker sought
clarification from probation, they told the social worker that mother only needed to tell
them when her address changed. The agency reported concerns that mother chose not to
live in a sober living facility where the agency could track her treatment plan’s progress.
As of August 31, 2020, mother had completed nine parenting sessions, one domestic
violence class session, and two individual counseling sessions.
The agency’s disposition report dated September 15, 2020, recommended that
mother be bypassed for family reunification services pursuant to section 361.5,
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subdivision (b)(10) and (b)(11) based on her past termination of reunification services
and parental rights to her other children.3 In support of this recommendation, the social
worker reported that as part of N.K.’s half sibling’s dependency case, mother was
recommended to complete residential treatment but failed to follow through with the
treatment. The report noted that though mother had enrolled in outpatient treatment in
March 2020, she had submitted a test positive for opiates in June 2020. The report
further indicated that mother’s parental rights as to N.S. had been terminated in
June 2020.
At the time the disposition report was prepared, father was not yet elevated to
presumed status, but DNA testing revealed it was 99.99 percent likely he was the
biological father. The agency recommended father be elevated to presumed status and be
granted reunification services.
The agency prepared an addendum report dated October 8, 2020, changing the
dispositional recommendation. The agency continued to recommend the juvenile court
assume jurisdiction and adjudge N.K. a dependent of the court but that N.K. be released
to father on family maintenance services. The social worker opined N.K. would not
suffer any detriment if he were released to father. The agency had conducted a home
assessment, and father had plenty of baby supplies. Father lived with the paternal
grandmother, and they both passed background checks. Father worked full time and had
a schedule opposite from the paternal grandmother, so care could always be provided for
N.K. Father also lived next door to the paternal great-grandmother who could also
3 Section 361.5, subdivision (b)(10) and (b)(11) provides that the court may not
order reunification services to a parent when it finds by clear and convincing evidence the
court terminated reunification services for any sibling or half sibling because the parent
failed to reunify with the sibling or half sibling (§ 361.5, subd. (b)(10)) or the parental
rights of a parent over any sibling or half sibling of the child had been permanently
severed (§ 361.5, subd. (b)(11)) and the parent had not subsequently made a reasonable
effort to treat the problems that led to removal of the sibling or half sibling from that
parent (§ 361.5, subd. (b)(10) & (b)(11)).
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provide care to N.K. when needed. Father admitted to smoking marijuana recreationally
on the weekends and reported he would utilize the paternal grandmother as childcare if he
chose to smoke and would change his clothes before having contact with N.K. Father
tested negative for substances the day of the home assessment. Father reported he was
not in contact with mother, and he had only known mother for two months before she
became pregnant with N.K. He did not think she was able to care for N.K. and did not
want to be involved with her. He indicated that if she made positive changes in her life,
he would be open to her having supervised visitation with N.K.
Father had begun participating in parenting classes and was going to complete a
domestic violence assessment; he completed a substance use disorder assessment and did
not meet the criteria for substance use disorder and no substance abuse services were
recommended.
The agency recommended the court not exercise its discretion to provide “family
preservation services” to mother.
Mother requested the matter be set for a contested jurisdiction/disposition hearing,
and at a hearing on October 9, 2020, the court granted discretion to the agency to release
N.K. to father.
At the contested jurisdiction/disposition hearing held on November 6, 2020, father
was elevated to presumed status, and the agency indicated N.K. had already been released
to him. Counsel for the agency made an offer of proof that, if called to testify, the social
worker would testify that as of the day of the trial, the social worker had no information
as to whether mother had entered a county approved sober living facility.
Mother testified on her behalf. She testified she had completed her outpatient
substance abuse program and parenting classes and was participating in domestic
violence victim counseling and individual counseling. Mother stated she wanted to
continue with services as they were helping her become a better person. Mother was
living at the Salvation Army on a “SAP program,” which she explained was a program
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for “people who are on ankle monitor” and required her to stay drug free, have a job, and
comply with her probation conditions. Mother was employed at a packing house.
Counsel for the agency argued mother should not be provided with any services,
an argument to which counsel for N.K. and father joined. Counsel for mother argued
against the court assuming jurisdiction, and, in the alternative, that she be provided with
services.
In ruling, the juvenile court found N.K. was a child described by section 300,
subdivisions (b)(1) and (j). The court noted it was concerned mother had not completed
her domestic violence services and was reluctant to enter a sober living facility that met
the requirements of the agency. As for disposition, the juvenile court adjudged N.K. a
dependent of the court and found N.K. was at substantial risk of detriment if he were to
be returned to mother, but not if he were placed with father. As for services, the court
ordered father be provided with family maintenance services. The court decided to
exercise its discretion by not ordering any services be provided to mother because she
had received services for the past four years through other dependency proceedings and
the court “[did not] see that she’s really availed herself of those services.” The court
went on to state: “I think every child would benefit from all parents receiving some type
of service, but it gets to a point where how long do you provide services?” The court
ordered mother and N.K. to have monthly supervised visits.
The court set a review hearing, and mother appealed the order denying her
services.
DISCUSSION
Mother’s sole contention on appeal is that the court erred by declining to order she
be provided with services under section 361.2, subdivision (b)(3). We disagree.
At the disposition hearing, if the court places the child with the previously
noncustodial parent and does not terminate jurisdiction over the child, the court has three
options: (1) order reunification services to the parent from whom the child is being
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removed; (2) “order that services be provided solely to the parent who is assuming
physical custody in order to allow that parent to retain later custody without court
supervision”; or (3) order “that services be provided to both parents, in which the court
shall determine, at [future] review hearings …, which parent, if either, shall have custody
of the child.” (§ 361.2, subd. (b)(3).)
Section 361.2 “expressly contemplates that reunification services will be offered
only for the purpose of facilitating permanent parental custody of the child by one or the
other parent.” (In re Erika W. (1994) 28 Cal.App.4th 470, 476 (Erika W.).) The juvenile
court may deny services to the parent from whom the child is being removed and order
services only to the previously noncustodial parent if that parent “can provide a safe and
stable permanent home for the child and the evidence establishes that the other parent
cannot.” (Ibid.) Providing services to the previously noncustodial parent alone “serves
the Legislature’s goals by placing the child in parental custody and providing for a safe
and stable permanent home for the child.” (Ibid.; see In re A.C. (2008) 169 Cal.App.4th
636, 644 [“Although [§ 361.2] ha[s] been revised since 1994, Erika [W.] still
persuasively describes the intended purpose … of the … statute[] as [it] exist[s] now.”].)
The court “ ‘has broad discretion to determine what would best serve and protect
the child’s interest and to fashion a dispositional order in accordance with this
discretion’ ”; this includes finding that ordering services to the nonreunifying parent is
not in the child’s best interest and to not order services for that parent. (In re Gabriel L.
(2009) 172 Cal.App.4th 644, 652; see In re Jaden E. (2014) 229 Cal.App.4th 1277, 1285
[services provided pursuant to § 361.2, subd. (b)(3) are “wholly discretionary”].)
We review the juvenile court’s decision not to order services to mother for abuse
of discretion. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.) When we review a
juvenile court order for abuse of discretion, the “ ‘ “appropriate test … is whether the trial
court exceeded the bounds of reason. When two or more inferences can reasonably be
deduced from the facts, the reviewing court has no authority to substitute its decision for
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that of the trial court.” ’ ” (In re Stephanie M. (1994) 7 Cal.4th 295, 318–319.) We will
not reverse the juvenile court’s decision unless that court “ ‘ “has exceeded the limits of
legal discretion by making an arbitrary, capricious, or patently absurd determination.” ’ ”
(Id. at p. 318.)
Mother has not shown the juvenile court’s decision was arbitrary, capricious, or
patently absurd. The precise question before the court was whether mother could provide
a safe and secure permanent home for N.K. so as to justify her receiving services along
with father. (See Erika W., supra, 28 Cal.App.4th at p. 477.) The court was reasonable
in resolving this inquiry in the negative and finding that ordering mother to be provided
with services was not in N.K.’s best interest.
Because N.K. was placed with father, the court did not reach the question of
whether a so-called bypass provision under section 361.5 applied, but we find the factors
a court must look at when determining whether reunification services are in the best
interest of a child in that context instructive. Those factors include: “ ‘the parent’s
current efforts, fitness, and history; the seriousness of the problem that led to the
dependency; the strength of the parent-child and caretaker-child bonds; and the child’s
need for stability and continuity.’ ” (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th
1113, 1124‒1125.)
We first acknowledge the record demonstrates that mother’s “current efforts” were
moving in a positive direction in that mother had completed a substance abuse program
and was participating in domestic violence and parenting services and appeared to have
been sober for a number of months. These efforts, while commendable, did not compel
the juvenile court to order any services under section 361.2 to mother, and we are not
persuaded by mother’s argument that the juvenile court was required to order services to
mother as a “backup” to father.
In addition to the facts favorable to mother, the court could also reasonably
consider mother’s history of poor performance on past services, her failure to reunify
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with N.K.’s half siblings, and her reticence to fully comply with the agency’s requests
(for example, by choosing not to reside in a sober living facility where the agency could
track her progress). Further, though there were no recent reported domestic violence
incidents and mother had begun to participate in domestic violence services, the court
could consider that mother had not completed a domestic violence program in light of the
fact that domestic violence had been an issue in her previous two dependency
proceedings, with Z.J. being a direct victim of physical abuse.
As we have stated, section 361.2, subdivision (b)(3) expressly states that when
services are provided to both parents under this subdivision, it is for the purpose of
determining which parent should be granted custody at a future review hearing. (§ 361.2,
subd. (b)(3); Erika W., supra, 28 Cal.App.4th at p. 477.) Because mother’s participation
in services was relatively recent, she had not yet made substantial progress in domestic
violence or counseling services, and she had a history of poor performance on services,
the court could have reasonably concluded mother would not be able to make enough
progress to be granted custody at a future review hearing before dependency jurisdiction
was terminated.
Moreover, the court could have reasonably inferred the relationship between
mother and N.K. was weak. N.K. was removed from mother as an infant, had only lived
with her for a matter of days, and had no demonstrable bond with her on this record. In
contrast, N.K. was already living with father at the time of the dispositional hearing with
no concerns noted.
Finally, in terms of N.K.’s stability and continuity, N.K. was placed with a parent
who the court determined could provide a safe and stable permanent home. The goal of
dependency proceedings, i.e., placement with a parent (Erika W., supra, 28 Cal.App.4th
at p. 478), had already been met. Notably, mother does not challenge the court’s orders
assuming jurisdiction over N.K., removing N.K. from her custody (and accordingly the
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court’s finding of detriment should N.K. be placed with her), nor placing N.K. with
father.
Based on the totality of the evidence, the court could have reasonably concluded
mother was unable to provide a safe and stable permanent home for N.K. and that her not
receiving services was in N.K.’s best interest. We find no abuse of discretion.
DISPOSITION
The juvenile court’s November 6, 2020 order declining to offer mother services is
affirmed.
DE SANTOS, J.
WE CONCUR:
FRANSON, Acting P.J.
PEÑA, J.
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