Alameda County Social Services Agency v. Natasha B. , 195 Cal. Rptr. 3d 649 ( 2015 )

Filed 12/2/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re T.G., A Person Coming Under the
Juvenile Court Law.
ALAMEDA COUNTY SOCIAL
SERVICES AGENCY,
Plaintiff and Respondent, A144548
v.
(Alameda County
Natasha B., Super. Ct. No. OJ14-023058)
Defendant and Appellant.
In this dependency appeal, Natasha B. (mother) seeks relief from the juvenile
court order terminating her parental rights with respect to her youngest daughter, T.G.
(born June 2013), pursuant to section 366.26 of the Welfare and Institutions Code.1 At
the November 2014 dispositional hearing in this matter, mother was bypassed for
reunification services in accordance with subdivisions (b)(10) and (b)(11) of section
361.5. Pursuant to those statutes, reunification services need not be offered to a parent if
the court has previously terminated reunification services or parental rights with respect
to a sibling or half sibling of the child and the parent “has not subsequently made a
reasonable effort to treat the problems that led to removal of the sibling or half
sibling . . . .” (§ 351.5, subd. (b)(10) & (11).)
1
All statutory references are to the Welfare and Institutions Code unless otherwise
specified.
1
Mother argues that bypassing her for reunification was improper because the
orders terminating services and parental rights with respect to T.G.’s half siblings were
on appeal at the time of T.G.’s dispositional hearing and therefore could not provide an
appropriate basis for bypass. She further asserts that—since the juvenile court’s bypass
decision was based on a patent legal error which violated her due process rights—she has
not forfeited the issue, despite her failure to raise it in the juvenile court or timely pursue
it in this court. Because we conclude that the juvenile court did not err in relying on
subdivision (b)(10) to bypass services for mother under the facts of this case, we need not
consider mother’s other contentions and affirm the juvenile court’s order terminating
parental rights.
I. BACKGROUND
T.G., the minor who is the subject of these proceedings, was detained by the
Alameda County Social Services Agency (Agency) on June 10, 2014, when she was
eleven months old. In its petition filed two days later, the Agency alleged that T.G. was
at substantial risk of harm because Natasha B.’s numerous emotional, mental health, and
substance abuse problems interfered with her ability to properly care for the minor. The
petition referenced a number of recent examples of mother’s neglect. For instance, on
May 29, 2014, mother called staff at the shelter where she was staying and asked them to
pick her up at the BART station because she was unable to make her way home. When a
staff member arrived, mother appeared quite intoxicated and was sitting on the curb with
T.G. in a stroller next to her. The staff member had to help mother stand and navigate the
stroller because mother was unable to push the baby. On June 2, 2014, mother, who
again appeared intoxicated, reported to shelter staff that she had an altercation with a
store owner while T.G. was in her care. According to mother, the store owner pulled her
hair and she ripped his pants pocket, causing a wad of bills to fall out. Mother then stole
the $900 and fled down the street with T.G. in the stroller. That same day, mother was
observed yelling and cussing at the minor while doing her hair. On June 3, 2014, shelter
staff had to intervene when mother, who admitted she was again intoxicated, vomited on
2
herself and the minor. Finally, mother had a history of marijuana use, and, according to
staff, she smelled of marijuana while caring for T.G.
Sadly, mother was, herself, involved with the child welfare system as a minor,
with 45 referrals involving the maternal grandmother’s substance abuse and mental
health issues dating back to 1988. The family received services from March 1994
through October 1996 and from April through August 1999. In 2007, when she was 16
years old, mother was briefly taken into protective custody after a physical altercation
with the maternal grandmother. Mother was reported to be difficult to manage and
associated with older individuals who would buy her alcohol. She was threatening to
people at school—breaking someone’s nose, almost breaking someone’s jaw, and
breaking three of her teacher’s teeth.
Mother also had a history of psychiatric hospitalizations, with seven admissions
prior to 2006. She had been involuntarily detained pursuant to section 5150 three times,
including once in 2007 after she threatened to hit a cousin with a carjack.2 At the time
T.G’s petition was filed, however, mother was not engaged in mental health treatment. In
addition, mother was reported to have neurological damage from a car accident when she
was a child, which left her with significant cognitive delays. Mother had also been
arrested on a number of occasions and, when T.G.’s petition was filed, was on probation
for resisting a police officer (Pen. Code, § 148, subd. (a)) and disturbing the peace (Pen.
Code, § 415), based on separate incidents occurring in 2009.
In March 2014, mother had been referred for voluntary services after it was
reported that T.G. had three large scrapes on her bottom and that mother did not have
stable housing. Although mother was referred for numerous services, including services
2
Section 5150 provides in relevant part: “When a person, as a result of a mental health
disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace
officer . . . or professional person designated by the county may, upon probable cause,
take, or cause to be taken, the person into custody for a period of up to 72 hours for
assessment, evaluation, and crisis intervention, or placement for evaluation and treatment
in a facility designated by the county for evaluation and treatment and approved by the
State Department of Health Care Services.”
3
through the local Regional Center, she failed to follow through. Moreover, despite
assistance from both the Agency social worker and her case manager from Through the
Looking Glass, a resource center for parents with disabilities, mother had failed to secure
stable housing.
Also of significance to the disposition in this case, mother has two older
daughters—C.B. (born March 2010) and J.M. (born February 2011)—who were removed
from her care in March 2012 due to allegations of neglect. According to the operative
petition in this sibling case, the two minors were at substantial risk of harm because
mother’s criminality, housing instability, mental health issues, and substance abuse
impacted her ability to adequately care for and protect them. For instance, in July 2011,
mother had been arrested for child endangerment (Pen. Code, § 273a, subd. (a)), after
riding with J.M. in a vehicle driven by an intoxicated person. Upon investigation, it was
discovered that the infant’s car seat had not been attached to the vehicle. The petition
further recounted mother’s history of housing instability, noting that the family was
living with the maternal grandmother at the time of detention, “which presented a serious
risk to the minors due to the grandmother’s serious mental health issues, substance abuse
issues, and previous [child welfare] history with her own children.” Mother’s history of
psychiatric hospitalizations and lack of current mental health treatment, despite her
demonstration of behavior consistent with an ongoing mental illness, was also described.
Finally, the petition detailed mother’s historic marijuana use and reported that C.B. had
tested positive for marijuana at birth.
Mother was offered reunification services with respect to C.B. and J.M., but these
services were terminated in June 2013—the same month that T.G. was born—due to her
failure to reunify. On July 31, 2014, the juvenile court terminated mother’s parental
rights with respect to both C.B. and J.M. We recently issued an unpublished opinion
4
upholding the juvenile court’s decision terminating parental rights. (In re C.B. et al.
(Sept. 2, 2015, A142238 & A142718) [nonpub. opn.].)3
As for T.G., she was formally detained in the home of her paternal grandmother
on June 13, 2014.4 Father supported placement with the paternal grandmother. He
reported concerns about mother’s ability, but would not go into detail. According to the
Agency, mother had shown “an inability to protect the minor when she engages in
substance abuse, criminal activity, and/or her violent behaviors, all with the minor in her
presence and care.” Moreover, in the Agency’s opinion, mother’s developmental delays
impacted her ability to make appropriate decisions and properly parent T.G.
While jurisdiction and disposition were pending, mother did complete an
assessment with the local Regional Center, and her case manager planned to refer her to
the Center’s Independent Living Program (ILP). Mother also entered a residential
treatment program in July 2014, but left after two days. Staff reported that she was
getting into arguments with other clients and was not willing to abide by the rules of the
program. Thereafter, she claimed to be receiving counseling and substance abuse
treatment through a local clinic, but failed to provide requested contact information so
that this could be verified. In October 2014, mother’s ILP worker reported that mother
had left her several messages in which she sounded intoxicated. When the social worker
asked mother about this report, mother became angry, yelling and swearing. Further,
when the social worker suggested that mother could clear up the matter through drug
testing, mother declined. At that point, mother was living in a homeless shelter. She had
not been participating in Regional Center services.
3
On May 12, 2015, we granted—without any determination of relevance—mother’s
May 11 request that we take judicial notice of the record and briefing filed with this court
in the consolidated appeals of C.B. and J.M. As we discuss later, we have reviewed
mother’s January 2014 petition filed pursuant to section 388 in the sibling case and the
related hearing transcripts. We otherwise find these materials irrelevant to our decision
and have therefore not considered them.
4
T.G.’s biological father, also T.G. (father), has not appealed and is not involved in these
proceedings.
5
Although mother had originally contested both jurisdiction and disposition—and
the proceedings were therefore continued repeatedly—when the hearing was actually
held on November 4, 2014, mother withdrew her request for a contest and submitted both
matters. The juvenile court therefore found the allegations in the petition, as amended in
court, true and concluded that the minor was a person described by subdivisions (b) and
(j) of section 300. Thereafter, noting that mother’s progress toward alleviating or
mitigating the causes necessitating T.G.’s placement had been “minimal at best,” the
juvenile court declared the minor to be a dependent child and denied both parents
reunification services. A hearing was set for February 26, 2015, pursuant to section
366.26 so that a permanent plan could be developed for T.G. Neither parent sought writ
review of this setting order.
In its report filed in advance of the permanency planning hearing, the Agency
recommended that T.G. be adopted by the paternal grandmother. Father was apparently
in favor of this outcome. Mother had been visiting T.G. irregularly in the home of the
paternal grandmother, despite the Agency’s offer for assistance with transportation and a
set visitation schedule. On December 7, 2014, mother showed up unexpectedly and, after
the grandmother agreed to supervise a visit in front of the house, mother exclaimed:
“ ‘You’re not going to take my child from me.’ ” She also screamed and cursed at the
grandmother, threatening to have people come to the home. Although mother later called
to apologize, mother’s supervised visitation was moved to a neutral setting. In the
opinion of the Agency, mother continued to struggle with the same issues that led to
T.G.’s removal and had a “years-long history of being unable to care for her children,
even with many supportive services from the Agency and elsewhere.”
At the permanency planning hearing on February 26, 2015, mother testified in
opposition to the Agency’s recommendation. She indicated that she had been taking
parenting classes and receiving drug and alcohol education. Mother also stated that she
was attending N.A. meetings, participating in Regional Center services, and visiting with
T.G. She continued to look for housing. Mother described her relationship and ongoing
contact with T.G., and her attorney argued that mother’s parental rights should not be
6
terminated based on the beneficial relationship exception to adoption—that is, that
mother had consistently visited with the minor and the child would benefit from
continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).)
Nevertheless, at the conclusion of the permanency planning hearing, the juvenile
court found T.G. adoptable, declined to apply the beneficial relationship exception to
block T.G.’s proposed adoption, and terminated the parental rights of both mother and
father. In reaching this decision, the court noted that the case involving T.G.’s half-
siblings was on appeal and needed to be followed by all of the parties because the
appellate decision “could have ramifications” in T.G.’s case that would need to be
addressed. Mother’s timely notice of appeal brought the matter before this court.
II. DISCUSSION
A. Forfeiture Issues
Mother contends that reversal is required in this case due to multiple errors in the
dependency proceedings involving T.G.’s half-siblings (C.B. and J.M.), matters which
were pending before this court at the time she briefed the present appeal. Since we
recently rejected all of these claims, upholding the juvenile court’s decision to terminate
mother’s parental rights with respect to C.B. and J.M. (In re C.B., supra, A142238 &
A142718 [nonpub. opn.]), these arguments are no longer available to mother. Thus, her
sole remaining theory in this case is that the juvenile court erred as a legal matter when it
bypassed her for reunification based on the orders terminating services and parental rights
with respect to T.G.’s half siblings, because those orders were on appeal, and therefore
not final, at the time of T.G.’s dispositional hearing.
It is undisputed, however, that mother did not object in the juvenile court on this
basis. Rather, she submitted the matter of T.G.’s disposition to the juvenile court for its
determination. Generally, such a failure forfeits a parent’s right to pursue the issue on
appeal. (In re S.B. (2004) 32 Cal. 4th 1287, 1293 & fn. 2 (S.B.), superseded by statute on
other grounds as stated in In re S.J. (2008) 167 Cal. App. 4th 953, 962; In re Dakota S.
(2000) 85 Cal. App. 4th 494, 502; In re Lorenzo C. (1997) 54 Cal. App. 4th 1330, 1338-
1339; In re Crystal J. (1993) 12 Cal. App. 4th 407, 411-413.) Indeed, although an
7
appellate court has the discretion to excuse such forfeiture, it should do so “rarely and
only in cases presenting an important legal issue.” (S.B., supra, 32 Cal.4th at p. 1293.)
This is especially true in juvenile dependency cases, which involve the well-being of
children and in which “considerations such as permanency and stability are of paramount
importance.” (Ibid.)
Moreover, in the present case, mother has arguably doubly forfeited the issue she
is now attempting to raise because, not only did she fail to bring it to the juvenile court’s
attention, she also neglected to seek timely appellate review of the matter in this court.
Generally speaking, “an unappealed disposition or postdisposition order is final and
binding and may not be attacked on an appeal from a later appealable order.” (In re
Meranda P. (1997) 56 Cal. App. 4th 1143, 1150 (Meranda P.).) The purpose of this rule
is to balance the parents’ interest in the care and custody of their children with the
children’s interest in the expeditious resolution of their custody status. (In re M.F. (2008)
161 Cal. App. 4th 673, 681-682 (M.F.).)
Here, the dispositional order bypassing mother for reunification services was part
of an order setting a permanency planning hearing under section 366.26. Since “[a]ll
orders issued at a hearing in which a section 366.26 hearing is ordered are subject to
section 366.26, subdivision (l) and must be reviewed by extraordinary writ” (In re
Tabitha W. (2006) 143 Cal. App. 4th 811, 817 (Tabitha W.)), mother was required to seek
writ review of the juvenile court’s bypass decision in order to preserve her right to
appellate review. (See § 366.26, subd. (l)(2) [failure to file a petition for extraordinary
writ review within the period specified by rule “shall preclude subsequent review by
appeal” of a setting order (italics added)]; see also Cal. Rules of Court, rule 8.450
(e)(4)(A) [when a party is present at the setting hearing, notice of intent to file writ
petition must be filed within seven days from the date of the setting order].) This she did
not do.
Again, however, this forfeiture rule is not absolute. Rather, it must not be applied
if “due process forbids it.” (In re Janee J. (1999) 74 Cal. App. 4th 198, 208 (Janee J.).)
Generally, the forfeiture rule does not infringe upon a parent’s due process rights because
8
of the numerous safeguards built into the dependency system. (M.F., supra, 161
Cal.App.4th at p. 682.) Thus, application of the rule has only been found inappropriate
on due process grounds when an error so “fundamentally undermined the statutory
scheme” that the parent was prevented from availing him or herself of its protections.
(Janee J., supra, 74 Cal.App.4th at p. 208.) Moreover, “defects must go beyond mere
errors that might have been held reversible had they been properly and timely reviewed.”
(Id. at p. 209.)
Mother, of course, argues that this is a case in which her procedural failures should
be excused. Specifically, she contends that the error she complains of was legal in nature
and was entirely fundamental to her case, depriving her of the many due process
protections she would otherwise have enjoyed during the reunification period. We agree
that bypassing a parent for reunification services is an extreme decision that has
significant ramifications for both parent and child. (See Cheryl P. v. Superior Court
(2006) 139 Cal. App. 4th 87, 98 (Cheryl P.) [“ ‘The failure of a parent to reunify with a
prior child should never cause the court to reflexively deny that parent a meaningful
chance to do so in a later case. To the contrary, the primary focus of the trial court must
be to save troubled families, not merely to expedite the creation of what it might view as
better ones.’ ”].) On the other hand, permitting a parent “to raise issues which go to the
validity of a final earlier appealable order would directly undermine [the] dominant
concerns of finality and reasonable expedition” underlying all juvenile dependency
proceedings. (Meranda P., supra, 56 Cal.App.4th at p. 1152.) Ultimately, however, we
need not decide whether relaxation of the forfeiture rule is appropriate under the facts of
this case. Rather, we conclude that the juvenile court’s order denying mother
reunification services pursuant to subdivision (b)(10) of section 361.5 was not error, and
thus affirm on that basis.
B. Validity of Bypass Order Under Subdivision (b)(10)
As a general rule, when a child is removed from parental custody under the
dependency laws, the juvenile court is required to provide reunification services to “the
child and the child’s mother and statutorily presumed father . . . .” (§ 361.5, subd. (a).)
9
The purpose of reunification efforts is to “eliminate the conditions leading to loss of
custody and facilitate reunification of parent and child. This furthers the goal of
preservation of family, whenever possible.” (In re Baby Boy H. (1998) 63 Cal. App. 4th
470, 478 (Baby Boy H.).) However, it is also the “intent of the Legislature, especially
with regard to young children, . . . that the dependency process proceed with deliberate
speed and without undue delay.” (Marlene M. v. Superior Court (2000) 80 Cal. App. 4th
1139, 1151.) Thus, the statutory scheme recognizes that there are cases in which the
delay attributable to the provision of reunification services would be more detrimental to
the minor than discounting the competing goal of family preservation. (See Ibid.)
Specifically, section 361.5, subdivision (b), exempts from reunification services “ ‘those
parents who are unlikely to benefit’ ” from such services or for whom reunification
efforts are likely to be “fruitless.” (In re Joshua M. (1998) 66 Cal. App. 4th 458, 474;
Baby Boy H., supra, 63 Cal.App.4th at p. 478.) Once the juvenile court concludes
reunification efforts should not be made in a particular case, it “ ‘fast-tracks’ ” the
dependent minor to permanency planning so that a permanent out-of-home placement can
be developed. (In re Rebecca H. (1991) 227 Cal. App. 3d 825, 838.)
The statutory sections authorizing denial of reunification services are sometimes
referred to as “bypass” provisions. (Melissa R. v. Superior Court (2012) 207 Cal. App. 4th
816, 821.) In the present case, the juvenile court denied reunification services to mother
based on two such bypass provisions, subdivisions (b)(10) and (b)(11) of section 361.5.
Since only one valid ground is necessary to uphold the juvenile court’s bypass decision,
we will focus here on subdivision (b)(10), under which reunification services need not be
provided if the court finds by clear and convincing evidence that “the court ordered
termination of reunification services for any siblings or half siblings of the child because
the parent or guardian failed to reunify with the sibling or half sibling . . . and . . . ,
according to the findings of the court, this parent or guardian 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 that parent or guardian.” (§ 361.5, subd. (b)(10).) This statute
10
“recognizes the problem of recidivism by the parent despite reunification efforts.” (Baby
Boy H., supra, 63 Cal.App.4th at p. 478; see § 361.5, subd. (c).)
We review an order denying reunification services under subdivision (b) of section
361.5 for substantial evidence. (Cheryl P., supra, 139 Cal. App. 4th 87, 96.) Under such
circumstances, we do not make credibility determinations or reweigh the evidence. (A.A.
v. Superior Court (2012) 209 Cal. App. 4th 237, 242.) Rather, we “review the entire
record in the light most favorable to the trial court’s findings to determine if there is
substantial evidence in the record to support those findings.” (Ibid.) Of course, to the
extent our analysis involves statutory interpretation, this is a legal matter which is subject
to our de novo review. (Robles v. Employment Development Dept. (2015) 236
Cal. App. 4th 530, 546.)
As stated above, mother argues here that bypassing her for reunification was
improper because the orders terminating services and parental rights with respect to
T.G.’s half siblings were on appeal at the time of T.G.’s dispositional hearing and
therefore could not provide an appropriate basis for bypass. However, pursuant to
section 361.5, subdivision (b)(10), bypass is permissible whenever a court has “ordered
termination of reunification services for any siblings or half siblings of the child because
the parent . . . failed to reunify with the sibling or half sibling after the sibling or half
sibling had been removed from that parent . . . .” As is relevant to this case, the juvenile
court’s June 2013 order with respect to C.B. and J.M. (half siblings of T.G.) terminated
reunification services for those minors because mother failed to reunify with them after
they had been removed from her care. As such, the order appears to comply with the
plain language of the bypass statute, irrespective of any possible pending appeals.
Although it does not directly address the issue of finality, In re Harmony B. (2005)
125 Cal. App. 4th 831 (Harmony B.) is instructive. In that case, the juvenile court denied
reunification services to the parents pursuant to subdivision (b)(10) of section 361.5 on
the same day that it terminated services for two siblings, the predicate action for
application of subdivision (b)(10). (Harmony B., supra, 125 Cal.App.4th at pp. 836,
840.) Harmony’s father argued on appeal that the two-pronged test for denial of services
11
under subdivision (b)(10)—prior termination of sibling services and no reasonable effort
by the parent to treat the problem which led to that sibling’s removal— necessarily
required the passage of time between the termination of services as to one child and the
denial of services as to another child. (Harmony B., supra, 125 Cal.App.4th at p. 840.)
The Harmony B. court disagreed, stating with respect to the first prong of the
subdivision (b)(10) test: “[F]ather argues that the siblings’ dependency proceedings had
not proceeded to the point where it could be determined whether he would reunify with
them, and he claims that nothing in the record indicates that he failed to reunify with the
siblings. Father’s argument overlooks the plain language of the statute. The statute
provides that the court has previously ‘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.’ (§ 361.5, subd. (b)(10), italics added.) It
does not provide that court has ‘ordered termination of reunification services for any
siblings of the child and the parent . . . failed to reunify with the sibling after the sibling
had been removed from that parent.’ Thus, on its face, the statute does not require any
lapse of time between the termination of services as to one sibling and the denial
of services as to another sibling to satisfy the first prong of the test.” (Fn. omitted.)
(Harmony B., supra, 125 Cal.App.4th at p. 840.) This analysis—focusing on the fact that
the order terminating services had been made at the time bypass was sought for another
sibling rather than on the ultimate outcome of the first sibling’s case—at the very least
strongly implies that an order terminating services in a sibling case need not be final in
order to support a bypass decision under subdivision (b)(10). (See Riverside County
Dept. of Public Social Services v. Superior Court (1999) 71 Cal. App. 4th 483, 491 [under
subdivision (b)(10), the “only requirement” is that the predicate action “occurred” before
the disposition hearing at which bypass is ordered].)5
5
We note that this analysis applies only to the statutory language of subdivision (b)(10).
A different conclusion might be reached under subdivision (b)(11) of section 361.5,
which allows for bypass only when the parental rights of a sibling or half sibling of the
child have been “permanently severed.” (§ 361.5, subd. (b)(11).) Moreover, while
12
Moreover, even were we to hold that finality was required in this case—or was
simply preferable when analyzing T.G.’s best interests—we disagree with mother’s
characterization of the order terminating reunification services as nonfinal at the time of
T.G.’s November 2014 dispositional hearing. As explained above, an unappealed
postdispositional order is “final and binding and may not be attacked on an appeal from a
later appealable order.” (Meranda P., supra, 56 Cal.App.4th at p. 1150.) Here, because
the June 2013 order terminating services for C.B. and J.M. was made during a hearing at
which a section 366.26 hearing was ordered, mother was required to seek writ review of
that order shortly after the June 2013 hearing in order to preserve her right to appellate
review. (Tabitha W., supra, 143 Cal.App.4th at p. 817; see § 366.26, subd. (l)(2); Cal.
Rules of Court, rule 8.450 (e)(4)(A).) Since mother did not seek such review, the order
terminating services became “final and binding.” Indeed, mother acknowledges as much.
She argues, however, that the finality of the juvenile court’s order terminating
services was somehow undermined when she subsequently filed a petition under section
388 seeking return of the minors and/or additional reunification services. Specifically,
according to mother, since the denial of her section 388 petition was on appeal at the time
of T.G.’s November 2014 disposition and the resolution of that appeal might impact the
prior order terminating reunification services with respect to C.B. and J.M., that order
was not sufficiently final to support bypass in T.G.’s case. We are not persuaded.
First, we note that mother’s 388 petition sought renewed reunification efforts
based on a change in circumstances—her demonstrated ability to successfully parent T.G.
with supportive services from Through the Looking Glass—and the current best interests
finality of the order terminating services does not appear to be statutorily required under
subdivision (b)(10), there may be circumstances in which the lack of finality of an order
terminating a first sibling’s services could lead the juvenile court to conclude that the
provision of reunification services to the second sibling might nevertheless be in that
minor’s best interests under section 361.5, subdivision (c). Factors that might be
considered in such an event include: the age of the child; any detriment to the child from
the provision of services; the estimated timeframe for resolution of any appellate issues;
the likelihood of success on the merits of the appeal; and the contemplated permanent
plan for the second sibling.
13
of the minors, C.B. and J.M. As such, it presented no argument which would undermine
the validity of the juvenile court’s prior order terminating services. In particular, it was
not an appropriate vehicle to attack the court’s prior reasonable services finding and, as a
factual matter—despite mother’s appellate arguments to the contrary—it did not do so.
(Meranda P., supra, 56 Cal.App.4th at p. 1150 [an unappealed dispositional order may
not be attacked in an appeal from a later appealable order].)
Rather, under entirely different legal standards than those confronted by a juvenile
court when terminating services, it sought to convince the juvenile court that further
efforts at reunification were now in the best interests of C.B. and J.M. But, as the
Harmony B. court recognized, whether mother ultimately reunified with C.B. and J.M. is
simply irrelevant under the first prong of the subdivision (b)(10) test for bypass.6 (See
Harmony B., supra, 125 Cal.App.4th at p. 840.) Instead, what was critical is that, as
happened here, the sibling case had reached the procedural point where termination of
services was ordered prior to the disposition in T.G.’s case. Under such circumstances, a
pending appeal on a related petition under section 388 does nothing to undermine the
finality of the prior order terminating services for purposes of subdivision (b)(10).
Indeed, to conclude otherwise would be to ignore the Legislature’s clear intent,
“especially with regard to young children, . . . that the dependency process proceed with
deliberate speed and without undue delay.” (Marlene M., supra, 80 Cal.App.4th at
p. 1151.)
6
In the appropriate case, however, later successful efforts at reunification might support
an argument under the second prong of the subdivision (b)(10) test: that a parent had
“subsequently made a reasonable effort to treat the problems that led to removal of the
sibling or half sibling . . . .” (§ 361.5, subd. (b)(10).)
14
We therefore conclude that the juvenile court’s bypass order under subdivision
(b)(10) of section 361.5 was proper and amply supported by the evidence before the
court.7 Given this determination, the juvenile court’s decision to bypass reunification
services in this case provides no basis for reversal of the juvenile court’s subsequent
order terminating mother’s parental rights with respect to T.G.
III. DISPOSITION
The judgment is affirmed.
_________________________
REARDON, J.
We concur:
_________________________
RUVOLO, P. J.
_________________________
STREETER, J.
7
Mother does not argue on appeal that the juvenile court’s bypass order was improper
under the second prong of subdivision (b)(10), which permits bypass only where a parent
“has not subsequently made a reasonable effort to treat the problems that led to removal
of the sibling or half sibling . . . .” (§ 361.5, subd. (b)(10).) In this regard, we note only
that T.G. was removed from mother based on the same mental health issues, substance
abuse concerns, and neglectful parenting practices that initially placed C.B. and J.M. at
risk. As the record more than adequately demonstrates, mother has not made a
reasonable effort to treat these issues since the March 2012 removal of C.B. and J.M.
15
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Charles A. Smiley
Counsel for Defendant and Mary R. Williams
Appellant: First District Appellate Project
Counsel for Respondents: Melinda L. Capozzi
Miruni Soosaipillai
Office of County Counsel
In re T.G. A144548
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