Alvin W. v. Superior Court CA2/2 ( 2021 )

Filed 9/1/21 Alvin W. v. Superior Court CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION TWO
ALVIN W., SR., B312499
Petitioner, (Los Angeles County
Super. Ct. Nos. 17CCJP00775C-D)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDING. Petition for extraordinary
writ. (Cal. Rules of Court, rule 8.452.) Stacy Wiese, Judge.
Petition granted, remanded with directions.
Law Office of Amy Einstein, Dominika Campbell and Rose
Fisher for Petitioner.
No appearance for Respondent.
Office of the County Counsel, Rodrigo Castro-Silva, County
Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son,
Deputy County Counsel, for Real Party in Interest.
Children’s Law Center 1 of Los Angeles, Margaret Lee and
Lindsay Joanou for Minors.
Children’s Law Center 2 of Los Angeles, Stacie Hendrix
and Heather Wilson for Mother.
________________________________
Alvin W., Sr., (Father) petitions for extraordinary relief
pursuant to California Rules of Court, rule 8.452. Father seeks
review of an order denying family reunification services and
setting a permanency planning hearing under Welfare and
Institutions Code section 366.26.1 He argues that the juvenile
court improperly bypassed reunification services, a contention
with which real party in interest the Los Angeles County
Department of Children and Family Services (DCFS) agrees.
Because the order denying reunification services was not
supported by sufficient evidence, we grant the petition.
FACTS AND PROCEDURAL HISTORY
The subjects of this proceeding are A.W., born in April
2019, and An.W., born in May 2020. This matter initially came
to the attention of DCFS in October 2020, when it received a
telephonic referral that Father and Angelique B. (Mother) were
involved in a domestic violence incident. According to the caller,
1 Further statutory references are to the Welfare and
Institutions Code, unless otherwise noted.
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Mother was in a motel room with A.W. and An.W. when Father
banged on the door. Mother opened the door, and, after Father
entered, he hit Mother, pulled her hair, and yelled at her, “I’m
going to kill you!” Father left the room carrying A.W. and
returned to the family’s apartment, where Mother eventually
joined him with An.W. Neighbors interviewed by the DCFS
social worker also reported domestic violence between Father and
Mother.
At the detention hearing, on November 13, 2020, the
juvenile court ordered the children detained. In addition, the
court issued a temporary restraining order against Father and in
favor of Mother.
On December 4, 2020, DCFS reported that another
domestic violence incident had occurred on November 12, 2020.
Father hit Mother with a broomstick in her crotch area, causing
the broomstick to break into several pieces. He also punched and
kicked her multiple times, causing injury and bruising. DCFS
expressed concern that Mother continued to return to the violent
relationship with Father. Additionally, DCFS noted that Father
had been attending domestic violence classes for criminal court
since early 2020, yet had continued to engage in domestic
violence.
In DCFS’s jurisdiction/disposition report, filed on February
16, 2021, DCFS requested that the juvenile court bypass family
reunification services. The report indicated that family
reunification services had previously been terminated as to both
Father and Mother for two older children, Alvin W. and Al.W.
According to the information provided by DCFS to the court,
section 300 petitions were sustained in September 2016 and
August 2018, respectively alleging in pertinent part that Mother
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“placed the child in a detrimental and endangering situation in
that the mother has a history of running away from placement
and engaging in illegal activity,” and Mother “placed the child in
a detrimental and endangering situation by failing to provide
stable housing for the child.” As family reunification services for
these prior matters, Father “was ordered to submit to random
drug testing.” DCFS reported that family reunification services
were terminated for Father on August 22, 2017, for Alvin W., and
on December 18, 2018, for Al.W. The reason given was “lack of
compliance with court orders to regain custody of the children.
Father did not submit to court ordered drug testing.” DCFS’s
report further stated that, on December 18, 2018, “the parents
were involved in a domestic violence incident which led to
father’s arrest.”
The jurisdictional hearing in this matter was held on
March 17, 2021. Just prior to the hearing, DCFS reported that
Father was in jail, apparently relating to the November 2020
domestic violence incident. At the hearing, the juvenile court
sustained the section 300 petition, under section 300,
subdivisions (a) and (b). The petition alleged, in pertinent part,
that Mother and Father “have a history of engaging in violent
physical and verbal altercations in the presence of the children.
On 10/8/2020, the father repeatedly struck the mother’s head
with the father’s fists. The father pulled the mother’s hair. The
father threatened to kill the mother. The father broke various
items in the presence of the children and in the children’s home.
On prior numerous occasions, the father physically assaulted the
mother. The mother failed to protect the children in that the
mother allowed the father to reside in the children’s home and
have unlimited access to the children. The father’s violent
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conduct towards the mother and the mother’s failure to protect
the children endangers the children’s physical health and safety,
[and] creates a detrimental home environment, placing the
children at risk of serious physical harm, damage, danger and
failure to protect.”
At the dispositional hearing on May 5, 2021, the juvenile
court ordered A.W. and An.W. removed from Father and Mother.
Additionally, the court denied family reunification services,
under section 361.5, subdivision (b)(10), and set a permanency
planning hearing.
Father timely filed a notice of intent to file a writ petition.
DISCUSSION
By this petition, Father only seeks review of the juvenile
court’s order bypassing family reunification services and setting a
permanency planning hearing, not its jurisdictional order or the
remainder of the dispositional order. Per California Rules of
Court, rule 8.452, this court issued an order to show cause why
the relief prayed for in Father’s petition should not be granted,
requesting a response to the petition by DCFS.
Rather than oppose the petition, DCFS, along with all other
parties to the case, filed a joint stipulation seeking reversal of the
dispositional order to the extent it denied Father reunification
services and set a permanency planning hearing.2, 3 In the joint
2 As part of their stipulation, the parties submitted a
proposed order for limited reversal of the dispositional order.
California Rules of Court, rule 8.452 does not provide for such a
procedure, however, instead generally requiring issuance of an
order to show cause and a written opinion. (Cal. Rules of Court,
rule 8.452(d), (h)(1).) We therefore decide this matter as directed
by the rule, and deny the proposed order as moot.
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stipulation, DCFS (and the other parties) concede that the
juvenile court erred in bypassing family reunification services for
Father.
Based on the record presented, we agree that family
reunification services were improperly denied to Father; the
order was based on insufficient evidence. When a child is
removed from a parent’s custody, the parent generally must be
provided with family reunification services. (§ 316.5, subd. (a); In
re Lana S. (2012) 207 Cal.App.4th 94, 106.) There are “narrowly
specified exceptions” to this rule, however (In re Lana S., at
p. 106), as set out in section 361.5, subdivision (b). The
application of these exceptions in the juvenile court is subject to a
clear and convincing standard of proof. (In re Lana S., at p. 106.)
We review a denial of reunification services for substantial
evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87,
96.)
The juvenile court here bypassed family reunification
services under section 361.5, subdivision (b)(10). Under this
exception, reunification services may be denied when the court
finds, by clear and convincing evidence, that “the court ordered
termination of reunification services for any siblings . . . of the
child because the parent . . . failed to reunify with the sibling . . .
after the sibling . . . had been removed from that parent . . . and
that, according to the findings of the court, this parent . . . has
not subsequently made a reasonable effort to treat the problems
that led to removal of the sibling . . . of that child from that
parent . . . .” (§ 361.5, subd. (b)(10).)
3 We construe the parties’ joint request for reversal and
immediate issuance of remittitur as a waiver of oral argument.
(See Cal. Rules of Court, rule 8.452(g)(2).)
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For this exception to be employed, sufficient evidence must
be provided demonstrating that the parent has not “made a
reasonable effort to treat the problems that led to removal of the
sibling[s],” as stated in section 361.5, subdivision (b)(10). (In re
D.H. (2014) 230 Cal.App.4th 807, 816; see also Jennifer S. v.
Superior Court (2017) 15 Cal.App.5th 1113, 1123.) In In re D.H.,
an order denying reunification services was found improper
because of insufficient evidence that the parent had not made
reasonable efforts to treat the problems that led to an earlier
removal. (In re D.H., at p. 809.) The court gave the following
reason for its finding: “the record before us shows that the
problems that led to the [prior] removal of the half siblings
(unsafe and unhealthy conditions) were different from those
presented in this case (alcohol abuse, anger management
problems and domestic violence); nor does the record establish
any connection between the two sets of problems or even that
father received services in the prior case for the problems
manifest in the present case.” (Ibid.)
The same analysis applies here. The record contains very
little information on the removal of A.W. and An.W.’s siblings,
Alvin W. and Al.W. None of the record from the earlier
proceedings is present here, and DCFS reports filed in this case
only briefly discuss the earlier matters. According to these
reports, both siblings were removed because Mother “placed the
child in a detrimental and endangering situation . . . ” with
regard to living circumstances. Apparently, the section 300
petitions contained no allegations expressly relating to Father.
Furthermore, according to what is present in the record, Father
“was ordered to submit to random drug testing.” There were no
other services required of Father, at least to the extent the
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information provided is accurate. And, finally, it appears that
reunification services were terminated because Father “did not
submit to court ordered drug testing.”
Thus, as in In re D.H., supra, 230 Cal.App.4th at page 809,
the problems that led to the prior removal of the siblings—being
placed by Mother in a detrimental and dangerous situation due to
living situation—were different from those in this case—domestic
violence. Nor does the record show any connection between the
two sets of problems. And, the record does not demonstrate that
Father received services in the prior case for the problem at issue
here, domestic violence.
Moreover, there’s no indication in the record that Father
“has not subsequently made a reasonable effort to treat the
problems that led to removal of the sibling . . . .” (§ 361.5, subd.
(b)(10).) Father’s involvement in the prior proceedings
apparently related to possible drug abuse and failure to submit to
drug testing. There has been no evidence presented in this case
that Father continues to engage in such behavior.
It is true that, in its reports to the juvenile court in this
case, DCFS referenced a December 18, 2018 domestic violence
incident that led to Father’s arrest. It is not clear, however, that
this incident factored into any prior termination of reunification
services. It certainly did not relate to termination of services
with respect to Alvin W., since these services were terminated in
August 2017. Whether the incident related to termination of
services with Al.W. is not clear, since the incident apparently
occurred on the same day as termination. Without a more
complete record, we cannot simply assume that domestic violence
was a reason for prior termination of reunification services. (Cf.
In re Lana S., supra, 207 Cal.App.4th at p. 108 [denial of
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reunification services proper because drug abuse was a subject of
prior services and a “recurrent theme” throughout prior and
current dependency proceedings].)
We emphasize that we do not intend to suggest that
Father’s behavior has been acceptable. It most certainly has not
been. Both the jurisdictional order and the dispositional order, to
the extent it required removal, were well supported. The issue
addressed in this writ petition is a discrete one. It is simply
whether sufficient evidence was presented to bypass reunification
services. Since the evidence was not sufficient, the dispositional
order requires correction in this regard.
DISPOSITION
The petition for extraordinary relief is granted and an
extraordinary writ hereby issues. The juvenile court’s May 5,
2021 dispositional orders are ordered vacated only to the extent
they denied Father family reunification services and set a section
366.26 hearing. The matter is remanded with directions to the
juvenile court to set a hearing and modify its dispositional orders,
providing Father with appropriate reunification services.
The temporary stay previously issued by this court is
dissolved. This opinion shall become final immediately upon
filing. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
_____________________, J. _____________________, J.
CHAVEZ HOFFSTADT
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