R.V. v. Superior Court CA4/2 ( 2021 )

Filed 9/23/21 R.V. v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
R.V.,
Petitioner, E077193
v. (Super.Ct.No. SWJ1400309)
THE SUPERIOR COURT OF OPINION
RIVERSIDE COUNTY,
Respondent;
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Michael J. Rushton,
Judge. Petition denied.
Daniel L. Vinson for Petitioner.
No appearance for Respondent.
Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and
Prabhath D. Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
1
Petitioner R.V. (Father) and E.V. (Mother; collectively) are the parents of C.
(female, born 2014), R. (male, born 2018),1 and Re. (female, born 2019, Minor.) Father
has filed a petition for extraordinary writ pursuant to California Rules of Court, rule
8.452. Father claims that the juvenile court erred in terminating reunification services
and in setting a hearing under Welfare and Institutions Code2 section 366.26 because
Father was not afforded or offered reasonable services. For the reasons set forth below,
we deny Father’s writ petition.
FACTUAL AND PROCEDURAL HISTORY3
A. THE FIRST DEPENDENCY PROCEEDINGS INVOLVING C.
1. DETENTION
“In April 2014, DPSS filed a dependency petition under section 300,
subdivisions (b) (failure to protect) and (g) (no provision for support) on behalf of C., a
newborn child, alleging mother’s incarceration and ongoing mental health issues, and
father’s ongoing mental health, anger, and substance abuse issues, impaired their ability
to care for the child. On April 14, 2014, the juvenile court found prima facie evidence to
remove C. from her parents’ care.”
1 This writ does not involve Mother, C.V. or R.V.
2 All statutory references are to the Welfare and Institutions Code unless
otherwise specified.
3 The factual and procedural histories are taken from our unpublished opinion in a
related case involving Minor’s siblings. (In re C.V. (Aug. 14, 2020, E074625) [nonpub.
opn.].)
2
2. JURISDICTION AND DISPOSITION REPORT AND HEARING
“According to the jurisdiction/disposition report filed May 9, 2014, mother was
adopted by the maternal grandfather and his first wife, who passed away when mother
was nine years old. The maternal stepgrandmother [MSG] informed the social worker
that mother ‘got bad into drugs’ in 2008 (using methamphetamine, cocaine, PCP, and
uppers), refused to remain in each rehabilitation center she was enrolled in, became
physically abusive, and was diagnosed with schizophrenia and bipolar disorder.
Mother’s incarceration was for a domestic violence incident involving a knife and the
paternal grandfather.
“At the May 14, 2014 jurisdiction/disposition hearing, the court sustained the
allegations in the first amended petition, declared C. a dependent, removed her from
parents’ custody, and ordered reunification services and visitation. Both parents filed
Judicial Council form ICWA-020 (parental notification of Indian status) indicating they
had no Indian ancestry as far as they knew.”
3. SIX-MONTH STATUS REVIEW REPORT AND ADDENDUM
“In the six-month status review report filed October 31, 2014, the social worker
reported father was unemployed but living with his parents. He was compliant with his
case plan and consistent with visitation. According to the addendum report filed
December 16, 2014, mother was compliant with her case plan while incarcerated and
after her release on October 31, 2014. Although she was eager ‘to get to know and care’
for her daughter, she refused to acknowledge ‘any history of substance use, misuse or
abuse.’ On December 19, 2014, the court continued parents’ reunification services and
3
ordered mother to submit to a psychological evaluation if recommended by her
therapist.”
4. TWELVE-MONTH STATUS REVIEW REPORT AND HEARING
“In the 12-month status review report filed May 28, 2015, the social worker stated
that both parents remained compliant with their case plans, they continued to make
efforts to improve their lives free from drugs and alcohol, and there were no safety
concerns. On June 10, 2015, based on DPSS’s recommendation, the juvenile court
placed C. with her parents on a family maintenance plan and on the condition the paternal
grandparents provide support.”
5. SECTION 387 PETITION
“Less than four months later, DPSS initiated supplemental proceedings (§ 387) to
remove C. from mother’s care based on her continued ‘abuse [of] controlled substances
and [her] noncomplian[ce with] her Court ordered case plan.’ According to the section
387 detention report filed September 24, 2015, as of August 3, 2015, she was using
methamphetamine and living on the streets. On September 22, 2015, C. was removed
from mother’s care but remained in father’s custody.
“In the jurisdiction/disposition report filed October 27, 2015, the social worker
stated mother was located at the maternal grandparents’ home, however, she was
‘deteriorating behaviorally and cognitively.’ A psychological evaluation revealed she
was ‘ “suffering from a severe neuro-cognitive disorder due to her extensive
methamphetamine abuse.” ’ Mother was described as being grossly impaired and unable
to take care of herself. On November 2, 2015, the court sustained the allegations in the
4
second amended section 387 petition and terminated mother’s reunification services. On
December 10, 2015, family maintenance services were continued as to father.
“On May 6, 2016, father filed an ex parte request to terminate dependency
proceedings. The request was granted; father was given primary legal and physical
custody of C., and supervised visitation was authorized for mother.”
B. THE SECOND DEPENDENCY PROCEEDINGS INVOLVING C.
AND R.
1. DETENTION
“On September 21, 2018, DPSS received a referral alleging general neglect.
Mother, who was nine months pregnant, claimed father had punched her in the face. Two
prior referrals were received in 2017 concerning mother and father engaging in domestic
violence. A police officer informed the social worker that the ‘family is well known to
law enforcement and they have each been arrested multiple times for being the aggressor
in a domestic violence assault.’ In October 2018, mother gave birth to a baby boy, R.
Mother told the social worker she and father had gotten back together a few months after
the prior dependency had closed. Mother disclosed she began using methamphetamine at
the age of 19 but became sober in 2016, when she was 28 years old. She stated she was
diagnosed with anxiety and depression but had not taken any psychotropic medications in
11 months. Mother admitted to slapping father in the face but denied that he had
assaulted her. The social worker interviewed C., who stated she had witnessed physical
fights between her parents. When confronted with C.’s statements, mother called C. a
5
‘compulsive liar.’ The social worker also spoke with father; however, he ‘presented with
disjointed thoughts, delusional thinking, and some dichotomous reasoning.’
“On November 2, 2018, DPSS filed a dependency petition under section 300,
subdivision (b)(1) (failure to protect) on behalf of C. and R., alleging both parents have
criminal histories and expose the children to ongoing acts of domestic violence, and
father has unresolved mental health and anger issues. Each parent filed parental
notification of Indian status forms indicating no Indian ancestry; however, upon hearing
that mother was adopted, the juvenile court asked the maternal grandfather if he had any
information ‘related to the mother having Indian ancestry.’ He replied, ‘No.’ On
November 5, 2018, the children were removed from their parents’ custody.”
2. JURISDICTION AND DISPOSITION REPORT AND HEARING
“According to the jurisdiction/disposition report filed November 26, 2018, the
children were placed with the maternal grandparents. The social worker opined that
‘[d]espite the parents participating in Court ordered services, they failed to benefit from
the services.’ She identified the ‘substantial history of domestic disputes’ as the primary
problem necessitating intervention. Other concerns included their ‘undiagnosed and/or
untreated mental health issues,’ the ‘ongoing history of drug use, not limited to marijuana
and cocaine,’ and mother’s ‘previous diagnosis of schizoaffective disorder due to her
history of drug use.’ Mother informed the social worker that she was adopted by a
‘social worker at McClaren Hall in El Monte’ when she was two or three years old.
6
“On November 29, 2018, the court sustained most of the allegations in the first
amended supplemental petition, declared the children dependents of the court, ordered
reunification services for both parents, and ordered father to participate in a medication
assessment and psychological evaluation.”
3. SUBSEQUENT REPORTS CONCERNING DOMESTIC VIOLENCE
AND VISITATION
“In the social worker’s report filed March 11, 2019, it was noted that father’s
anger management issues appeared to be escalating. On January 23, 2019, mother went
to the police station asking to obtain a temporary restraining order against father, but she
left without following through. On February 14, 2019, two calls were made to law
enforcement regarding domestic violence. The next day, father reportedly ‘punched his
pregnant wife in the stomach, slapped her, and threw her to the ground several times.’
Mother was hospitalized. The court issued an emergency protective order, but mother
returned home soon after the incident and recanted the allegations. Father was diagnosed
with ‘Bipolar and Related Disorder, Hypomanic Episode W/O Prior Major Depressive
Episode, Delusional Disorder Grandiose Type, and Narcissistic Personality Disorder.’
His therapist opined that father might require a higher level of care or medication
management.
“On April 18, 2019, DPSS filed an addendum report to address liberalizing
mother’s visitation. The social worker recommended ‘no change in visitation orders.’
While mother had completed a parenting class and an outpatient substance abuse
program, and had been consistently testing negative for controlled substances, the social
7
worker expressed concerns about the continued domestic violence. In addition to the
previously reported domestic violence calls to law enforcement, calls were made on
March 7, March 20, and April 5, 2019. Father admitted he smoked marijuana on a daily
basis and prior to his visits with the children. The social worker ‘advised that he should
not be under the influence while visiting or caring for the children.’ When mother visited
the children, she spent ‘much of the visit with [R.]’ because ‘the baby requires more
attention’ and C. ‘did not play’ with mother.”
4. SIX-MONTH STATUS REVIEW REPORT, ADDENDUM, AND
CONTESTED HEARING
“According to the six-month status review report filed May 10, 2019, DPSS
recommended terminating reunification services as to both parents and setting a
section 366.26 hearing with a permanency goal of adoption. The social worker noted
both parents’ prior denial of any Native American ancestry but related that mother, on
May 7, 2019, stated a DNA ancestry test showed she was 58 percent Native American.
Mother had no information as to her ancestral tribe because her ‘ “bio mother is deceased
and bio father unknown.” ’ While both parents had made progress on their case plans,
they did not appear to be ‘benefitting from their participation in Domestic Violence
services.’ Dr. Robert Suiter conducted a psychological assessment of father and opined
there were no ‘ “reassurance[s] at all that [father] would benefit from services.” ’ Both
parents regularly visited the children. On May 30, 2019, the court set a contested six-
month status review hearing.
8
“In its addendum report filed June 18, 2019, DPSS continued to recommend
terminating services and setting a section 366.26 hearing. The social worker reported
another domestic violence incident in May 2019, when father yanked the ignition out of
their car, leaving mother stranded in the middle of the street outside DPSS’s office.
Father was angry and stated the social worker had a ‘personal vendetta against him and
[was] racist against Mexicans.’ Based on father’s demeanor and erratic behavior, DPSS
determined it would not be safe for the children to visit with him that day. Father
continued to test positive for marijuana. Mother was diagnosed with ‘P-Intermittent
Explosive Disorder, Unspecified Depressive Disorder, and Schizophrenia.’ She had not
reached her goal of ‘increasing insight and identifying effective coping and parenting
skills’ as she exhibited ‘aggressive behavior, verbal and physical, three times per week.’
Her therapist expressed many concerns, including mother’s minimization of her domestic
violence and blaming others for her behavior, and recommended continuing therapy.
According to mother’s psychological evaluation, her prognosis was favorable only to the
degree she could remain separated from father and take her prescribed medications.
“On June 27, 2019, the court noted there was reason to believe the children may
be of Indian ancestry and that ICWA may apply. Nonetheless, the court terminated
reunification services and set a section 366.26 hearing with a permanent plan of adoption.
Both parents filed notices of intent to file a writ petition; however, the petitions were
dismissed.”
9
5. ICWA NOTICES
“On August 13, 2019, DPSS served and filed ICWA notices for each child.
Notice was provided to the Bureau of Indian Affairs (BIA) and the U.S. Department of
the Interior. The notices identified mother’s married and maiden names (not her birth
name), her date and place of birth, and the biological maternal grandmother’s name.
Regarding additional information, the notices provided: ‘Mother was interviewed on
5/15/19 by Social Services Practioner [sic], Stacy Vasquez, and a CSD 4597 was emailed
to ICWA noticing on 5/15/2019. Mother indicated per her DNA test she discovered she
was 58% Native American. Tribe is unknown at this time. Mother was adopted around 2
to 3 years old and was unable to provide any identifying information on her biological
parents other than a first and last name of her biological mother. A search of C-IV and
Accurint was conducted on 7/22/2019 and a print out of all known family members and
associates was forwarded to the Social Services Practioner [sic] on 7/23/2019. On
6/27/2019, step maternal grandmother, [MSG], was interviewed by Noticing Office
Assistant, Christy Alcocer. She provided family information for the adoptive family.’
The U.S. Department of the Interior was unable to determine tribal affiliation because the
notice contained insufficient information.”
6. SECTIONS 366.26 AND 366.3 STATUS REVIEW REPORT AND
ADDENDUM
“According to the sections 366.26 and 366.3 status review report filed October 11,
2019, parents’ visitation with the children became ‘sporadic’ because mother was again
10
pregnant, and she asked to suspend visitation until after the baby was born, and father had
canceled several visits. In September 2019, mother gave birth to a baby girl, Re.[4]
“In its addendum report filed December 24, 2019, DPSS continued to recommend
termination of parental rights as to C. and R. and adoption by the maternal grandparents
with whom the children had been residing since November 5, 2018. According to the
maternal grandparents, the children saw ‘them as their parents’ and ‘look to them when
they want to be “cuddled,” play, or have their needs met.’ The maternal grandparents
fully understood that adoption was a lifelong commitment, wanted to always be there for
the children, and believed they could provide the children with stability, love, and
attention. C. wanted the maternal grandparents’ home to be her ‘ “forever home.” ’ ”
7. SECTION 388 PETITIONS
“Father filed a section 388 petition as to each child on December 31, 2019, and
mother filed the same on January 2, 2020. Both parents sought to reinstate family
4 “On October 16, 2019, DPSS filed a dependency petition under section 300,
subdivisions (b)(1) (failure to protect) and (j) (abuse of a sibling) on behalf of Re. based
on both parents’ substantiated allegations of general neglect of their older children, who
had been exposed to acts of domestic violence. According to the detention report, both
parents denied ‘having tribal linkage pertaining to Native American and/or Alaskan
heritage.’ Each parent filed separate parental notification of Indian status forms
indicating the same. Mother refuted her prior report of a domestic violence incident from
February 2019, claiming that she ‘ “passed out and must have imagined something
happened that did not happen,” ’ or attributed it to her being ‘ “pregnant and having
hormonal issues.” ’ Father also denied the incident, asserting mother was making it up.
Father stated that he and mother ‘know not to “tattle-tell” on each other now.’ Law
enforcement had not received any calls from the home since May 2019. On October 17,
2019, the juvenile court detained [Minor]. On November 7, 2019, the court found
[Minor] came within section 300, subdivisions (b)(1) and (j), adjudged her a dependent of
the court, and allowed her to remain in both parents’ care, with family maintenance
services.”
11
reunification services. As for changed circumstances, father asserted he ‘is currently on
Family Maintenance as to [Minor] and is progressing well in his services,’ ‘has been
attending individual therapy, a substance abuse program through MFI Recovery Center
and has been testing clean,’ ‘is completing a parenting program through Safe Care, and
he is also enrolled in a Domestic Violence program and group therapy through Cox
Romain.’ As for mother’s changed circumstances, she asserted she ‘is on Family
Maintenance as to her youngest daughter [Minor] and is doing well in her services,’ and
‘is currently enrolled in domestic violence classes, has been attending individual therapy,
and parenting at home care.’ Both parents claimed to have benefited from the services
received; father added that he has cooperated with DPSS and has participated in
‘appropriate and positive’ visits, while mother stated that she “ ‘loves her children very
much and believes that it is in their best interest for the Court to order Family
Reunification Services’ so they can ‘reunify with their youngest sister who is on FM with
the parents.’ A hearing on the section 388 petitions was set.
“On January 17, 2020, the maternal grandparents requested de facto parent status.
“DPSS opposed the section 388 petitions on the grounds (1) ‘the parents’
circumstances may be changing, [but] they have not changed,’ and (2) ‘re-establishing
reunification services to them would be detrimental and not in the best interest of these
children.’ Although both parents visited the children, R. did not ‘remember’ them and
seemed ‘traumatized and crie[d] often during the visits,’ and C. appeared ‘to play on her
own a lot.’ The social worker opined the children did not ‘appear to see [mother and
father] as their parents. They do not look forward to the visits and [C.] often seems
12
indifferent, except when it comes to comforting her brother.’ Even though they were
participating in therapy and domestic violence programs, their circumstances had not
changed.”
8. SECTIONS 388 AND 366.26 HEARING
“A contested section 366.26 hearing in combination with a hearing on the
section 388 petitions was held on January 27, 2020. The court also heard the maternal
grandparents’ request for de facto parent status. Father provided stipulated testimony that
(1) he had benefited from services, (2) he had completed a substance abuse program,
(3) he was not using marijuana, (4) he had attended five Narcotics Anonymous (NA)
meetings (but had forgotten to bring his signed cards to the hearing), (5) he had
participated in eight sessions of a domestic violence program, four to five sessions of
individual counseling, and some marriage counseling, and (6) Re. was safe in his care.
Mother also provided stipulated testimony that (1) she had attended four to five
individual counseling sessions, eight domestic violence classes, and some marital
counseling courses, (2) she had benefitted from the courses, (3) there was no additional
domestic violence in her relationship with father, and (4) her home was suitable for the
children. In response, the children’s counsel acknowledged both parents’ participation in
various programs; however, counsel argued there was no change in their circumstances,
and it was not in the best interest of the children to provide further reunification services
to mother and father. DPSS concurred.
13
“The court denied the section 388 petitions. The court noted the history of the
case was replete with domestic violence, dating back to 2014, and that both parents had
poor mental health. The court opined that ‘as to the historical issues related to this
couple, the severity of those issues, how they relate to both of your mental health issues,
and a chronic history of substance abuse, a few months of either sobriety or not hurting
each other and not calling the police on each other does not mean that the underlying
issues in this case are resolved.’ The court expressed concern that both parents were
‘basically white-knuckling it.’ Thus, the court stated, ‘the entire history of this particular
case is so extreme that the efforts made by the parents most recently are de minimis and
result, at most, in what the Court would view as changing circumstances.’ Regarding the
best interests of the children, the court observed the children to be ‘very bonded to their
current caretakers. [R.] really knows no other parents. [C.] has very negative memories
of her parents and a very positive outlook on her current environment.’
“The juvenile court granted the maternal grandparents’ request for de facto parent
status, found the beneficial exception to adoption did not apply, terminated parental
rights, and ordered adoption as the permanent placement plan. The court also found
ICWA did not apply. Both parents filed timely notices of appeal.” (In re C.V., supra,
E074625.)
After the parents appealed, on August 14, 2020, we affirmed the juvenile court’s
orders denying the section 388 petitions, terminating parental rights, and placing the
children for adoption. (In re C.V., supra, E074625.)
14
C. THE CURRENT DEPENDENCY CASE
On October 16, 2019, DPSS filed an out-of-custody petition as to Minor; she was
only one-month old. DPSS stated that Minor came under section 300, subdivisions (b)(1)
and (j), as a result (1) of the failure or inability of the parents to supervise or protect her
adequately; and (2) by the inability of the parents to provide Minor with regular care due
to the parents’ mental illness, developmental disability, or substance abuse.
DPSS alleged that both parents had a history with [DPSS] due to substantiated
allegations of general neglect and exposing C. and R. to acts of domestic violence. DPSS
also alleged that Father failed to reunify with his children, continues to deny perpetrating
acts of domestic violence against Mother, and has not completed his court-ordered case
plan. DPSS alleged that Minor will be subject to similar harm as with her siblings.
The next day, October 17, 2019, the juvenile court ordered Minor to remain with
her parents.
At the jurisdiction/disposition hearing on November 7, 2019, the juvenile court
found all of the allegations true, adjudged Minor a dependent of the court, and ordered
family maintenance services to the parents. The case plans for the parents included
counseling, domestic violence programs, parenting classes, and substance abuse services.
Father’s case plan consisted of individual counseling, domestic violence programs,
parenting classes, substance abuse programs, and drug testing. Both Mother and Father
continued to deny domestic violence.
Mother participated in therapy. Her therapist believed that “there is ongoing
minimization.” In March of 2020, Mother completed a domestic violence program.
15
Father attended therapy but did not address his domestic violence issues. He
completed a domestic violence program in March of 2020. The parents completed in-
home parenting and kept in contact with their parent partners.
On June 19, 2020, the juvenile court continued family maintenance services to
both parents.
The parents continued to live together. Father stated that he and Mother learned
not to “tattle-tell” on each other. Mother stated that they never call the police to report
domestic violence. Both Mother and Father continued to participate in general
counseling to alleviate issues that led to domestic violence. They completed family
therapy in October 2020. They also had negative drug tests.
On October 13, 2020, a neighbor called the police to report a domestic dispute
between Mother and Father. The neighbor reported that a female was banging on the
door of the apartment and a male came out. The neighbor then heard the female saying,
“ ‘Oh you were going too hit me.’ ” The neighbor heard the female falling and she said
“ ‘Ow.’ ” Another neighbor informed the parents that he was calling the cops and the
male cursed at the neighbor.
On November 17, 2020, Father denied knowledge about the domestic dispute.
Both parents denied any domestic violence.
On December 21, 2020, the social worker noted concerns during a home visit.
Mother appeared sad and emotional. Several times, she stated that Father would not hurt
her and that everything was fine. Mother declined an offer for conjoint and individual
16
therapy. The social worker reported that the parents were compliant with [DPSS] and
court, but expressed concern for Mother’s safety and the family’s well being.
On January 25, 2021, the juvenile court continued family maintenance services to
the parents.
In February of 2021, Mother underwent a medication evaluation. The doctor
indicated that Mother appeared “altered” and minimized her symptoms. Mother appeared
“unfocused, dazed and unengaged” and made “bizarre statements.” Mother did not know
the month or the year, and was talking about having an abortion even though she was not
pregnant. The doctor diagnosed Mother with major depressive disorder and other
psychoactive substance abuse.
On February 26, 2021, Father told the social worker that he did not feel Mother’s
mental health issues were “severe” and felt that she should be able to care for Minor.
Father left the child alone with Mother for hours when he worked from 5 a.m. to 11 p.m.
He did not want strangers to care for Minor and declined options involving day care.
There was no family support available to support Father. Nonetheless, Father felt
uncomfortable with anyone other than Mother caring for Minor.
On March 11, 2021, the social worker observed the family home as being very
cluttered. As the social worker and Father talked, Mother would “interject continuously
with bizarre statements.” Mother made comments that people are “touching and poking
at my baby,” and denied any domestic violence even when the social worker did not ask
about domestic violence. Mother stated that she would “rather not get spanked.” She
also declined child care and medication assistance.
17
On March 12, 2021, law enforcement received a report that a female in the
parents’ apartment was screaming, “ ‘Get your hands off of me,’ and that the female was
screaming a lot.” At 2:36 a.m., “the reporting party could hear loud pounding and the
male and female were still yelling. At 2:51 a.m.[,] an officer went to the residence and
knocked 6 different times, with no answer.”
On March 15, 2021, DPSS filed a section 387 petition. The social worker reported
in the detention report that Minor was placed in a confidential foster care.
The next day, on March 16, 2021, the juvenile court granted DPSS’s request to
dismiss the section 387 petition and to file a section 342 petition in its place. DPSS filed
a section 342 petition that day. DPSS alleged that Minor came within section 300,
subdivision (b)(1), as a result of the failure or inability of her parents to supervise or
protect Minor adequately, and the inability of the parents to provide Minor with regular
care due to the parents’ mental illness, developmental disability, or substance abuse.
DPSS alleged that the previous disposition had not been effective in the protection
of Minor because Mother’s mental health had deteriorated and Father continued to
minimize Mother’s mental health issues, and continued to allow Mother to care for Minor
unattended for long hours of the day.
At the detention hearing on March 16, 2021, the juvenile court detained Minor
from both parents. The court ordered twice-weekly supervised visits for the parents.
In its jurisdictional and disposition report, DPSS requested that the court find the
allegations true and deny the parents reunification services under section 361.5,
subdivision (b)(10) and (b)(11).
18
In the report, the social worker stated that in a psychological evaluation dated
March 19, 2021, Dr. Garett reported that Mother suffers from paranoia, extreme
emotional instability, and schizophrenia. Dr. Garett stated that in her current condition,
“ ‘she should likely have no contact with any children whatsoever because she is likely to
upset them.’ ” Dr. Garett recommended that Adult Protective Services visit Mother to
ascertain if Father was mistreating her. Mother had reported that Father has “threatened
to kill her with an ax” and that he “verbally abuses her, demands sex, and is emotionally
abusive as well. Mother also told Dr. Garett that Father had spit on Mother’s face and
calls her fat. She was afraid of him. Mother “cried to at least thirty minutes during the
interview and disintegrated to a point at which she could not answer even basic
questions.” Dr. Garett said that individuals in her condition are frequently in psychiatric
facilities. He believed that Mother lives in an abuse environment. Dr. Garett
recommended that Minor not have any visits with Mother.
Father stated that all of the allegations were false. He denied that Mother
struggled with her mental health. He was also resistant to DPSS’s involvement and was
not cooperative. Father accused Mother of being “lazy.” He had no wish or plan to care
for Minor by himself and was committed to remaining with Mother in a relationship.
Minor was in good general health. Prior to her removal, she was observed as
reserved with a flat effect, and “was not engaging, smiling, or talking. She also was not
eating or drinking well.” She then started to eat much better, smiled more, played, and
slept well.
19
DPSS reported that mental health had been an issue in this case since the first
dependency for Minor’s sibling in 2014, and has been an ongoing problem. Domestic
violence has also been an ongoing issue for at least seven years.
DPSS reported that the parents had received numerous services and referrals to
assist them with their issues. DPSS provided parenting classes, in-home parenting
classes, individual therapy, substance abuse services, psychiatric assessments, medication
evaluations, psychological evaluations, marriage therapy, mental health treatment, and
domestic violence/anger management programs. Many of these services had been
provided to the parents on several occasions. DPSS again provided referrals to the
parents. On March 12, 2021, Father stated that he did not want to participate in any more
services. He described DPSS’s involvement as “B.S.”
On March 16, 2021, the parents visited with Minor. Mother appeared to be “out of
it” and had slow speech. She did not interact with Minor. Father fed and talked to
Minor. At the end of the visit, Father told Mother to kiss Minor; she declined.
On March 23, 2021, Father was more affectionate than Mother at the supervised
visit.
On April 1, 2021, Mother’s psychiatrist reported that Mother was not open to
taking medication and recommended a higher level of care for her. Mother’s therapist
indicated that the parents have a high-conflict relationship and Mother thought that Father
was working against her in services. The therapist stated that Father blames Mother for
their current situation. Father did not believe that therapy would be beneficial. The
therapist noted that Father was agitated and cursed a lot.
20
On April 20, 2021, DPSS secured comprehensive mental health services for
Mother. Father stated that Mother was not willing to leave the apartment to attend
services. On April 23, 2021, DPSS provided a referral to parents for an agency that
provided advocacy, education, support, and public awareness for families affected by
mental illness. The social worker also provided the parents with an appointment with the
agency. Neither Mother nor Father responded.
On April 23, 2021, Mother’s therapist noted the parents “were arguing and that
she talked to each of them” to calm them down during Mother’s zoom therapy session.
Father still blames Mother for their current situation. The parents attend supervised visits
but neither parent changed Minor’s diaper.
On April 29, 2021, the parents attended an intake appointment with a psychiatrist
who prescribed Mother antipsychotic medication after Mother stated she was not
pregnant. Mother did not go anywhere without Father, and she deferred to him to answer
questions.
On May 6, 2021, Father presented as emotional and overwhelmed with Mother’s
situation. He stated that even with the medication, Mother was not functioning. Mother
refuses to visit Minor.
On May 10, 2021, Father told the social worker that Mother was pregnant. She
became “very erratic, yelling and carrying on.” Father called the police because Mother
was trying to leave him. The police came and told him that he could not prevent Mother
from leaving. Mother left and Father found her the next day in a parking lot across the
street. Mother appeared to be under the influence; she admitted using methamphetamine.
21
Father took her home and she ranted and made bizarre statements. Father called the
police and medical personnel came; they took Mother to the hospital. Mother returned
home and left again. Father located her “at a place where he knew from long ago that
they would go get drugs.” Father took Mother home, he called the police, and the police
arrested Mother for being under the influence. On the same day, the police released
Mother and she returned to Father. DPSS provided Mother with services for mental
health, substance abuse, and therapy.
On June 2, 2021, at the contested section 342 jurisdictional hearing, counsel for
Mother and Father presented stipulated testimony.
Mother’s stipulated testimony was that she loved Minor very much and was
willing to do anything to reunify with her. Mother’s counsel argued that Mother had
benefitted from services.
Father’s stipulated testimony was that he had made significant progress on his case
plan, had cared for Minor since birth, and had a close bond with her. Father testified that
Minor always ran up to him to be held by him, and at the end of visits, Minor did not
want to leave him. Father loved Minor very much.
Father’s counsel asked the court to find not true the allegations in the petition.
Counsel did not dispute the juvenile court’s orders terminating Father’s services and
parental rights for Minor’s siblings. However, counsel argued that Father had
subsequently made reasonable efforts to treat the problems that led to the removal of the
siblings. Counsel argued that Minor was removed for a different problem than her
22
siblings. He argued that Father completed programs and benefitted from those services
because Minor was not removed at birth.
Counsel for DPSS argued that Father was aware that domestic violence and mental
health have been longstanding issues in the past and current dependency, and that DPSS
had provided services to parents to treat those issues. Counsel argued that Father has
failed to benefit from the services. The parents were in the same position as in 2014.
Minor’s counsel joined with county counsel. She argued that the domestic
violence and mental health issues remained.
The juvenile court took judicial notice of the court’s own case file. The court
found that the parents have an unhealthy, codependent relationship where both parties
lack any insight. The court noted that both parents have severe mental health issues and
could not stay away from each other. This led to the cyclical nature of their returns to
court. The parents were expecting another child with the underlying conditions
unresolved, which suggested that Father did not benefit from services.
The juvenile court stated that Father’s counsel took a narrow view of the
underlying issue in this case.
After looking at all of the allegations found true by the juvenile court in this case,
the court found that all of the allegations were interrelated with issues of domestic
violence, mental health, and substance abuse. The court stated that Father was in a state
of denial when Mother started to decompensate, necessitating DPSS to intervene to
protect Minor.
23
The juvenile court went on to find that Father remained angry, with high conflict
in his interactions. Father was resistant and combative to services. He also continued to
fail to protect Minor from Mother and continued to invite Mother back into his life. The
court found “pretty compelling evidence that he [was] still being physically violent with
the mother.”
Father faced the same issues as before—his unwillingness to protect Minor from a
very poor relationship Father had with Mother. He failed to earnestly engage in services
and he did not learn anything from his past services. The court stated, “given the
repeated occurrence of the same issues over and over and over again without really any
significant break in the occurrence of these behaviors, the spotty involvement of the
parents in some services” did not rise to the level of making reasonable subsequent
efforts to treat the problems that led to the removal.
The juvenile court found true the allegations in the petition, found that Minor
came within section 300, subdivision (b)(1), adjudged Minor a dependent, and removed
physical custody of Minor from the parents. The court denied reunification services
under section 361.5, subdivision (b)(10) and (b)(11), and found that reunification services
are not in Minor’s best interest. The court then set a section 366.26 hearing.
On June 8, 2021, Father filed a timely notice of intent to file writ petition.
On July 9, 2021, Father filed a motion to augment the record on appeal. On July
9, 2021, we granted Father’s motion. On July 27, 2021, Father filed another motion to
augment the record on appeal. On July 29, we granted Father’s motion. On August 6,
2021, Father filed the augmented record.
24
DISCUSSION
A. SUBSTANTIAL EVIDENCE SUPPORTS THE JUVENILE COURT’S
ORDER DENYING SERVICES TO FATHER UNDER SECTION 361.5,
SUBDIVISION (B)(10) AND (B)(11)
Father argues that the juvenile court erred in denying reunification services
because “insufficient evidence existed to deny family reunification services to [Father]
under 361.5 (B)(10) & (11).” For the reasons set forth post, we find that substantial
evidence supports the juvenile court’s denial of reunification services.
Generally, the juvenile court is required to provide reunification services to a child
and the child’s parents when a child is removed from parental custody under the
dependency laws. (§ 361.5, subd. (a).) The purpose of providing reunification services 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.) It is also the legislative intent, “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. [Citation.] Specifically, section 361.5.
subdivision (b), exempts from reunification services ‘those parents who are unlikely to
25
benefit’ from such services or for whom reunification efforts are likely to be ‘fruitless.’ ”
(Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1120.)
Specifically, section 361.5, subdivision (b)(10), provides that a court may deny
services if there is clear and convincing evidence: “That the court 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 . . . 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 or half sibling of that child from that parent.”
Subdivision (b)(11) of section 361.5, provides that a court may deny services if
there is 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 is the
same 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 or half sibling of that child from that parent.”
When the juvenile court concludes reunification efforts should not be provided, it
“ ‘ “fast-tracks” ’ ” the dependent minor to permanency planning so that permanent out-
of-home placement can be arranged. (Jennifer S. v. Superior Court, supra, 15
Cal.App.5th at p. 1121.) The statutory sections authorizing denial of reunification
services are commonly referred to as “ ‘bypass’ ” provisions. (Ibid.)
26
Once it has been determined one of the situations enumerated in section 361.5,
subdivision (b), applies, “ ‘ “ the general rule favoring reunification is replaced by a
legislative assumption that offering services would be an unwise use of governmental
resources.” ’ ” (In re William B. (2008) 163 Cal.App.4th 1220, 1227 (William B.);
accord, In re A.G. (2012) 207 Cal.App.4th 276, 281.) Thus, if the juvenile court finds a
provision of section 361.5, subdivision (b), applies, the court “shall not order
reunification for [the] parent. . . unless the court finds, by clear and convincing evidence,
that reunification is in the best interest of the child.” (§ 361.5, subd. (c)(2).) “The burden
is on the parent to . . . show that reunification would serve the best interests of the child.”
(William B., at p. 1227; accord, A.G., at p. 281.)
“We affirm an order denying reunification services if the order is supported by
substantial evidence.” (In re Harmony B. (2005) 125 Cal.App.4th 831, 839 (Harmony
B.); see also Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 971.) In applying
the substantial evidence test, we presume the court made the proper order and consider
the evidence in the light most favorable to the ruling. (Sheila S. v. Superior Court (2000)
84 Cal.App.4th 872, 880.) We do not “resolve conflicts in the evidence, pass on the
credibility of the witnesses, or determine where the preponderance of the evidence lies.
[We merely determine whether] there is any substantial evidence, whether or not
contradicted, which will support the conclusion of the trier of fact.” (In re Walter E.
(1992) 13 Cal.App.4th 125, 139-140.)
27
In this case, overwhelming evidence supports the juvenile court’s findings under
section 361.5, subdivision (b)(10) and (b)(11). It was undisputed that reunification
services, as well as parental rights, had been terminated with respect to Minor’s siblings.
As provided ante, the parental rights of Mother and Father were permanently severed as
to Minor’s siblings C. and R. Indeed, Father does not dispute that the first prong of either
subdivision (b)(10) or (11) or section 361.5 has been satisfied.
1. THE ISSUES IN THIS DEPENDENCY ARE SIMILAR TO THE
ISSUES IN THE PRIOR DEPENDENCY
In this case, Father contends that the issues that led to Minor’s removal are
different from the issues that led to the removal of Minor’s siblings, therefore, section
361.5, subdivision (b) subsections (10) and (11), are not applicable. We disagree.
Here, the juvenile court found that the allegations alleged in both dependencies
were interrelated—with issues of domestic violence, mental health, and substance abuse.
The court stated, “It’s the same issue that goes back all the way to the very beginning,
which is effectively dad being unwilling to take the steps that he needed to[,] to protect
[Minor] from this very poor relationship that he had with the mother.” Substantial
evidence supports the court’s finding.
As provided in detail ante, Minor’s siblings were removed in November 2018
because of the parents’ unresolved mental health and domestic violence issues. Father
punched Mother on two occasions when Mother was nine months pregnant. Mother
reported multiple prior unreported domestic violence incidences. Minor’s sibling C.
stated that her parents hit each other; she did not want to live with them because of their
28
fighting. The parents minimized the extent of their violence and did not want to
participate in services.
The parents already had a long history of domestic violence and mental health
issues. In their 2014 dependency, they each received services for domestic violence,
counseling, psychotropic and medication valuation, parenting education, and substance
abuse services. Although Father completed his case plan and received custody of C., the
parents resumed living together soon after the termination of the dependency. They
continued to engage in domestic violence. Father also voiced his awareness of Mother’s
mental health needs and stated he would protect the children from Mother. Father,
however, failed to protect them.
In the 2018 dependency, the court ordered Father to complete substance abuse
services, parenting classes, individual counseling, domestic violence classes, and
psychological and medication evaluations. Father participated in a domestic violence
perpetrator program but did not make any progress. Instead, he denied any aggression or
domestic violence. However, there were numerous incidents of domestic violence
between the parents throughout that dependency.
During this dependency, the parents’ domestic violence continued. This time,
however, the parents were better at concealing the domestic violence. They decided not
to “tattle-tell.” After some time, Mother reported that Father had threatened “to kill her
with an ax” and that he verbally and emotionally abused her, and demands sex.
Moreover, Father spit on her and told her she was fat. Mother was afraid of Father. Dr.
Garett reported that he believed Mother was living in an abusive environment. The
29
evidence supports that domestic violence has been an ongoing issue for parents for at
least the past seven years.
In addition to the domestic violence, Mother’s mental health has been an ongoing
concern throughout the dependencies. Mother was hospitalized on numerous occasions
for her mental health issues. Mother received psychological evaluations twice in 2015,
once in 2019, and once in 2021.
The parents received mental health services. Father’s therapist had expressed
concern regarding Father’s lack of insight into his issues in March of 2019. Father
continues to deny any aggression or domestic violence.
In this case, Father failed to protect Minor from the parents’ domestic violence and
their mental health issues. Father did not feel that Mother’s mental health issues were
“severe” and left Mother to care for Minor for long hours without assistance while he
went to work from 5 a.m. to 11 p.m. Moreover, he called Mother “lazy” and placed
blame on Mother for their current situation.
Dr. Garett had reported that individuals with Mother’s mental health issues were
frequently in psychiatric facilities. Nonetheless, Father denies and minimizes Mother’s
mental health concerns and resists cooperating with DPSS. Father does not believe
therapy would be beneficial. He is resistant to DPSS’s involvement and does not want to
participate in any more services.
During the three dependencies, DPSS provided Father with services—parenting
classes including in-home parenting classes, individual therapy, substance abuse services,
psychiatric assessments, medication evaluations, psychological evaluations, marital
30
therapy, mental health treatment, and domestic violence and anger management
programs. Many of these services were provided on several occasions. Notwithstanding,
the issues involving domestic violence, mental health and failure to protect continue.
As the juvenile court found, the problems identified in the most recent petition
found true are interrelated to the problems that led to the removal of Minor’s siblings
from Father’s custody in 2018. The court stated: “What if I just identified the problem
as an unhealthy, codependent relationship where both parties are lacking in any insight,
which really seems to be at the heart of what’s going on here. [¶] They both have severe
mental health issues. They can’t stay away from each other, and it has really—it really is
at the heart of this cyclical nature of their return to court over and over and over again.”
2. FATHER DID NOT MAKE REASONABLE EFFORTS
Moreover, Father contends that the juvenile court erred in not concluding that
Father had made “reasonable efforts” to treat the problems that led to the removal of
Minor. We disagree. While every effort should be made to save a parent’s relationship
with a child despite the parent’s history of substantial misconduct (Renee J. v. Superior
Court (2002) 96 Cal.App.4th 1450, 1464 (Renee J.)), the “no-reasonable effort” clause
was not intended to provide a parent such as Father another opportunity to address an
underlying problem when he had many opportunities and failed to do so. (Harmony B.,
supra, 125 Cal.App.4th at p. 843.) Instead, it was intended to mitigate an otherwise harsh
result in the case of a parent who, having failed to reunify, subsequently worked toward
correcting the underlying problem. (Id. at p. 842.)
31
R.T. v. Superior Court (2012) 202 Cal.App.4th 908 (R.T.) is instructive. In R.T.,
the child was removed from his parents’ care after his father was arrested for domestic
violence and the mother admitted drug and alcohol use. The parents had previously
failed to reunify with the child’s sibling, P.T., who was removed based on the parents’
substance abuse and chronic homelessness. (Id. at p. 911.) The parents had made only
minimal efforts to engage in reunification services in P.T.’s case. But, two months after
the child’s removal, the mother moved to a safe residence, separated from the father, was
following mental health recommendations, and had started attending a drug treatment
program and 12-Step meetings. Notwithstanding these efforts, the juvenile court ordered
bypass of reunification services, citing the termination of parental rights in P.T.’s case
and finding the parents had not made reasonable efforts to treat the underlying problems.
(Id. at pp. 911-913.)
The Court of Appeal explained: “We do not read the ‘reasonable effort’ language
in the bypass provisions to mean that any effort by a parent, even if clearly genuine, to
address the problems leading to removal will constitute a reasonable effort and as such
render these provisions inapplicable. It is certainly appropriate for the juvenile court to
consider the duration, extent and context of the parent’s efforts, as well as any other
factors relating to the quality and quantity of those efforts, when evaluating the effort for
reasonableness. And while the degree of progress is not the focus of the inquiry, a
parent’s progress, or lack of progress, both in the short and long term, may be considered
to the extent it bears on the reasonableness of the effort made. [¶] Simply stated,
although success alone is not the sole measure of reasonableness, the measure of success
32
achieved is properly considered a factor in the juvenile court’s determination of whether
an effort qualifies as reasonable.” (R.T., supra, 202 Cal.App.4th at pp. 914-915, italics
omitted.)
In concluding that substantial evidence supported the juvenile court’s finding, the
R.T. court observed: “There is no evidence that mother made any effort to address her
substance abuse issues after minor was returned to her, until minor was once again
removed and bypass was recommended. By then, mother had been using drugs again for
nearly a year, if not longer, and minor was once again languishing without proper care as
a result. There is no evidence in the record that mother, in the month or two of services
following minor’s second removal, had engaged in these services in any meaningful way.
[Citation.] In any event, the juvenile court properly could conclude this recent effort,
even assuming the effort were substantiated, was simply too little, too late.” (R.T., supra,
202 Cal.App.4th at p. 915, italics omitted.)
In this case, substantial evidence supports the juvenile court’s findings that Father
did not make reasonable efforts to treat the problems that lead to Minor’s siblings’
removal from his custody.
In this case, the issue of whether Father’s participation constituted “reasonable
effort” within the meaning of section 361.5, subdivision (b)(10) and (b)(11), remained
highly questionable with the inception of the third dependency in October of 2019, when
the juvenile court terminated family reunification services in the second dependency just
four months prior. Moreover, Father’s parental rights were not even terminated in the
second dependency until January 2020—after the filing of this case. It is evident from
33
the record that Father’s effort, when considering the duration, extent, and context in the
long term, was not reasonable. Father failed to treat the problems, namely the parents’
domestic violence issues, that led to the removal of Minor’s siblings. The parents’ issue
with domestic violence resurfaced time and time again throughout the pendency of the
three dependency cases.
Although Father participated in a domestic violence perpetrators program in the
prior dependency, he did not make any progress. Father continued to deny any
aggression or domestic violence, even though domestic violence continued to be a major
issue.
On February 15, 2019, when Mother was pregnant, Father punched her in the
stomach, slapped her, and threw her to the ground several times. Mother was transported
to the hospital because she had stomach pain and redness near her eyes. Then 12 days
later, Mother reported to law enforcement that Father hit her with a broom and he was
“coming after her” again. On Mach 20, 2019, Father threatened to beat Mother.
Also in March 2019, during a supervised visit with Minor’s siblings, Father “used
profanity, raised his voice and was visibly angry in the presence of his children.” R.’s
legs bruised when Father held him too tight. Moreover, the baby immediately threw up
when Father gave her to the caretakers.
On the day of a supervised visit on May 9, 2019, Father “yanked” the ignition out
of the car, which left the car inoperable in the middle of the street. He also called Mother
“vulgar names, cussed at her and was confrontational.” The juvenile court terminated
Father’s services and his parental rights soon thereafter.
34
Since the prior dependency, Father has failed to show that he made reasonable
efforts to address the prevailing domestic violence and mental health issues. As noted in
detail above, during the pendency of this case, Father has threatened to kill Mother and
continues to verbally and emotionally abuse Mother. Mother’s therapist reported that the
parents have a high-conflict relationship. Dr. Garett also noted that Father was often
agitated. Moreover, Father did not believe therapy would be beneficial. Furthermore,
Father continues to deny that he harmed Mother and that Mother has mental health
issues.
At the hearing on June 2, 2021, the juvenile court noted that Father “did not do
much during the case of [C.] and [R.] except apparently engage in more domestic
violence. The Court terminated his services along with the mother’s. [¶] For a period of
time after [Minor] was born, that was a period of about—services were terminated on
[C.] and [R,] on about 6-27, and on 10-16 a new petition was filed involving [Minor]. So
[C.] and [R.] terminated services 6-27, new petition filed 10-16 as to [Minor].”
The court went on to say that “the parents did participate in components of their
case plan and seemed to be doing better. But, again, considering the involvement of
[DPSS] with this family from 4-11-2014 until today’s date, a period of more than seven
years with a gap in between, but not much of a gap, frankly, in the end, except for the last
few weeks, dad has been combative and uncooperative with [DPSS]. [¶] When [DPSS]
tried to point out to [F]ather—if you kind of look at what led up to the removal of
[Minor], it didn’t happen, like, all of a sudden. [DPSS] noticed that the there were issues
going on with mother. They made suggestions.”
35
The court then stated, “And so, yeah, you jumped through a few hoops in what it
looks like to the court, but really failed to learn anything or benefit or, in the Court’s
view, earnestly engage in those services. Because had you done so when [DPSS] pointed
out to you the handwriting that was on the wall, which is the woman that you’re married
to who’s been sick from an emotional standpoint since at least 2014, that she’s not well
again, and that you need to take protective measures, and instead the report to the social
worker is words to the effect, she’s not doing her part around the house, just really zero
suggestion that you learned anything over the last number of years.”
The court then concluded that the parents were failing either to participate or when
they did participate, “to derive any meaningful value from the services that [the parents]
have received. [¶] So beyond mere compliance, I cannot find that the parents have
subsequently made a reasonable effort to treat the problems that led to the removal of the
siblings. [¶]. . . [¶] But given the repeated occurrence of the same issues over and over
and over again without really any significant break in the occurrence of these behaviors,
the spotty involvement of the parents in some services, in the Court’s view, does not rise
to the level of making reasonable—subsequent reasonable efforts to treat the problems
that led to the removal as that language is set forth in (10) and (11). [¶] So for that
reason I am terminating—or I am denying services to both parents in this matter.”
Notwithstanding the court’s finding, Father argues that he has made reasonable
efforts. He contends that he has completed his case plan, including several domestic
violence programs, and has not engaged in domestic violence in over a year. In support
36
of his argument, Father relies on Renee J., supra, 96 Cal.App.4th 1450 and In re Albert T.
(2006) 144 Cal.App.4th 207. Neither case is helpful to Father.
In Renee J., the mother initially tested positive for drugs early in the dependency.
Thereafter, the mother continued to drug test and tested negative. Moreover, she
participated in services and was doing everything she could to reunify. (Renee J., supra,
96 Cal.App.4th at pp. 1456,-1458) The juvenile court, however, terminated the mother’s
services because the court felt that it had no choice based on a California Supreme Court
ruling that had been pending in their matter. (Id. at p. 1458.) The mother filed a writ.
The court of appeal reversed and directed the juvenile court to hold a hearing to consider
whether additional services should be offered to the mother. (Id. at pp. 1466-1467.)
The facts in this case are distinguishable. Here, Father has failed to make any
lasting change in his behaviors, and his unhealthy behaviors have continued throughout
the dependency proceedings. Although the mother in Renee J. embraced change, and
worked hard to make changes, Father, in this case, resists change and does not even
acknowledge the domestic violence and mental health issues. Therefore, Renee J. is not
applicable.
Albert T. also is not helpful to Father. In Albert T., a sibling was removed and
services were terminated because the mother could not care for the child’s special needs.
(In re Albert T., supra, 144 Cal.App.4th at pp. 211-212.) Two years later, the mother
entered into a voluntary contract with the agency to address domestic violence. (Id. at p.
213.) After completing individual therapy and domestic violence counseling, the child
was removed after a domestic violence incident. (Id. at pp. 213-214.) The court of
37
appeal reversed the denial of services because the first dependency did not involve issues
of domestic violence. (Id. at pp. 219-221.)
The facts in this case are distinguishable. Here, all three dependencies involved
issues of domestic violence and mental health. Father received services for these issues
in each dependency. Moreover, Minor was removed due to the same problems that
resulted in her siblings’ removal.
The purpose of the reasonable effort prong of section 361.5, subdivision (b)(10)
and (b)(11), is not to create further delay for a child by allowing a parent, who up to that
point has not reasonably addressed his or her problems, another opportunity to do so.
(Harmony B., supra, 125 Cal.App.4th at p. 843.) Viewing Father’s history in its totality,
we conclude there is substantial evidence to support the juvenile court’s finding that
Father did not make a reasonable effort to treat the problems that led to the removal of
Minor’s siblings from his care. Accordingly, the juvenile court did not err when it denied
reunification services under section 361.5, subdivision (b)(10 and (b)(11).
B. SUBSTANTIAL EVIDENCE SUPPORTS THE JUVENILE COURT’S
FINDING THAT REUNIFICATION SERVICES WERE NOT IN
MINOR’S BEST INTEREST
Father contends that “the best interests of the children dictate granting Father
family reunification services.” We disagree.
“[T]he party seeking bypass of reunification services under section 361.5,
subdivision (b) has the burden of proving that reunification services need not be
provided,” a showing that must be made by clear and convincing evidence. (§ 361.5,
38
subdivision (b).) (In re Angelique C. (2003) 113 Cal.App.4th 509, 519, 521.) However,
once the court makes a finding that a bypass provision specified in section 361.5,
subdivision (c)(2) applies, the burden of proof shifts to the parent to establish
affirmatively that reunification nevertheless would be in the best interest of the child.
(See In re Z.G. (2016) 5 Cal.App.5th 705, 721; William B., supra, 163 Cal.App.4th at p.
1227.) “A court called upon to determine whether reunification would be in the child’s
best interest may consider a parent’s current efforts and fitness as well as the parent’s
history. [Citation.] Additional factors for the juvenile court to consider when
determining whether a child’s best interest will be served by pursuing reunification
include: the gravity of the problem that led to the dependency; the strength of the relative
bonds between the child and both the parent and caretakers; and the child’s need for
stability and continuity, which is of paramount concern.” (In re S.B. (2013) 222
Cal.App.4th 612, 622-623, citing In re Ethan N. (2004) 122 Cal.App.4th 55, 66-69.)
“A juvenile court has broad discretion when determining whether. . . reunification
services would be in the best interests of the child under section 361.5, subdivision (c).
[Citation.] An appellate court will reverse that determination only if the juvenile court
abuses its discretion.” (William B., supra, 163 Cal.App.4th at p. 1229.) In other words,
we will not disturb such a discretionary decision unless the lower court made “an
arbitrary, capricious, or patently absurd determination.” (Adoption of D.S.C. (1979) 93
Cal.App.3rd 14, 24-25.) Furthermore, when the party with the burden of proof (i.e.,
Father in this case) fails to meet his or her burden, upon appellate review the question
“becomes whether the evidence compels a finding in favor of the appellant as a matter of
39
law. [Citations.] Specifically, the question becomes whether the appellant’s evidence
was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to
leave no room for a judicial determination that it was insufficient to support [the]
finding.’ ” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) The same standards direct
our review in a proceeding under California Rules of Court, rule 8.452.
Even given a liberal construction of his petition, as required by California Rules of
Court, rule 8.452(a)(1), Father has not met his burden.
In this case, Father asserts that reunification services should be provided because
he completed several programs and has a bond with Minor. These facts are inadequate to
overturn the court’s finding that providing reunification services to Father would not be
in Minor’s best interest.
In re S.B., supra, 222 Cal.App.4th 612 is instructive. There, the father made a
similar argument as Father in this case. The father in In re S.B. cited efforts he had made
to improve his parenting ability, evidence of his relationship with the child, and evidence
of the child’s desire to maintain a relationship with the father. (Id. at p. 623.) This court
found that the determination that reunification would be in the child’s best interest is not
simply a matter of whether a parent engages in parenting classes and counseling, or
whether the child wants to live with the father. (Ibid.) Under the circumstances—where
the father lacked insight into the factors contributing to his issues—we found that it was
reasonable that the court denied reunification services. (Id. at p. 624.)
40
Here, Father also lacks insight into the factors that contributed to his extensive
history in the dependency proceedings—domestic violence, mental health issues, and the
failure to protect the children from Mother. Father also never acknowledged that he
committed domestic violence with Mother. With his failure to acknowledge domestic
violence, it is unlikely that any domestic violence program or individual counseling could
be effective—especially after he had been afforded those services in the prior dependency
proceedings. “[T]here must be some ‘reasonable basis to conclude’ that reunification is
possible before services are offered to a parent who need not be provided them,” and “at
least part of the best interest analysis must be a finding that further reunification services
have a likelihood of success.” (William B., supra, 163 Cal.App.4th at pp. 1228-1229.)
At the conclusion of the hearing in this case, the juvenile court stated:
“Reunification services are denied as reunification services are not in the best interest of
[Minor]. [¶] And I have made . . . an extensive record as to the Court’s reasons for those
findings. [¶] And then I am also mindful of the additional language in 361.5(c)(2), and
that language is that the Court shall not order reunification services for a parent or
guardian described in—and it lists (10) and (11), (b)(10) and (b)(11)—unless the Court
finds by clear and convincing evidence that reunification is in the best interest of the
child. [¶] So I did find by the clear and convincing evidence standard that these parents
are described by (b)(10) and (b)(11), and I certainly cannot find by clear and convincing
evidence that reunification would be in the best interest of this child, especially given the
extremely challenging track record that the Court has just described for the record.”
41
Because the Legislature has decided that parents who fall under section 361.5,
subdivision (b), are unlikely to benefit from reunification services, the court properly
gave priority to this Minor’s interest in the timely establishment of a stable, permanent
plan rather than family unification. Therefore, we find that that the court did not err in
finding that it was not in Minor’s best interest to grant Father reunification services.
DISPOSITION
The writ petition is denied.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P. J.
FIELDS
J.
42