In re Alisha S. CA4/1 ( 2013 )

Filed 12/18/13 In re Alisha S. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re ALISHA S., a Person Coming Under
the Juvenile Court Law.
D064446
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. NJ14670B)
Plaintiff and Respondent,
v.
SCOTT S. et al.,
Defendants and Respondents;
ALISHA S.,
Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Michael J.
Imhoff, Commissioner. Affirmed.
Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and
Respondent Scott S.
Joanne D. Willis Newton, under appointment by the Court of Appeal, for Defendant and
Respondent Arleen K.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
Julie E. Braden, under appointment by the Court of Appeal, for Minor.
Child Alisha S. appeals following the dispositional hearing in her dependency case. She
contends the juvenile court erred by ordering reunification services for her mother, Arleen K.,
and father, Scott S. (together, the parents). We affirm.1
BACKGROUND
The parents' son S.S. was born in February 2012. He was medically fragile, and the San
Diego County Health and Human Services Agency (the Agency) filed a dependency petition
alleging medical neglect by the parents. The court ordered S.S. removed from Arleen's
custody pursuant to Welfare and Institutions Code2 section 361.3 The parents were offered
1 The parents move to dismiss the appeal as moot, arguing that the six-month review
hearing, set for February 6, 2012, will take place before this court's opinion becomes final.
Alisha opposes the motion and we deny it.
2 Further statutory references are to the Welfare and Institutions Code unless otherwise
specified.
3 The court found that it would be detrimental to S.S. to be placed with Scott, who was at
that point an alleged father. (§ 361.2, subd. (a) ["When a court orders removal of a child
pursuant to [§] 361, the court shall first determine whether there is a parent of the child, with
whom the child was not residing . . . , who desires to assume custody . . . . If that parent
requests custody, the court shall place the child with the parent unless it finds that placement
with that parent would be detrimental to the safety, protection, or physical or emotional well-
being of the child."].) The same bench officer presided in Alisha's case, and then noted there
was a typographical error in S.S.'s dispositional minute order, which stated that S.S. was
removed from "the parents."
2
reunification services for more than six months, but did not participate in services or respond to
the Agency's attempts at contact. The parents were also offered services through the Indian
Health Council (IHC). With the assistance of an IHC drug counselor, Arleen made an
appointment to enter a residential substance abuse treatment facility, but did not follow
through. The parents failed to reunify with S.S., and the court ordered a permanent plan of
another planned permanent living arrangement.
Alisha was born in April 2013, approximately two months after services ended in S.S.'s
case. Alisha too suffered from medical complications. Arleen left the hospital the day after
Alisha's birth, and Alisha remained there. At various times, Alisha required breathing and
feeding tubes, oxygen, medication and physical and occupational therapy. After three days,
Arleen returned to the hospital and Scott made his first visit. After that, the parents called the
hospital or visited almost daily. Their visits lasted from five minutes to two and one-half
hours.
Approximately one week after Alisha's birth, the social worker attempted to contact the
parents. After nearly two weeks of making telephone calls and sending letters, the social
worker reached the parents by telephone. Arleen met with the social worker in early May, but
Scott did not show up for the meeting. The Agency offered Arleen referrals for counseling and
medical care. Additionally, Halona Sheldon, an Indian Child Welfare Act (ICWA) (25 U.S.C.
§ 1901 et seq.) case manager, offered the parents referrals and services. In May, Arleen
contacted her drug counselor, but did not begin treatment or contact the counselor again.
Arleen also attended one individual therapy session in May. She did nothing further.
3
In early May 2013, the Agency filed a dependency petition. The petition alleged that
Alisha tested positive for marijuana at birth. Arleen admitted using drugs during pregnancy
and had little prenatal care. Arleen had untreated diabetes, which resulted in a working
diagnosis of hypotonia for Alisha. Scott had a history of drug use.
In late May 2013, Alisha was released from the hospital and detained in the foster home
where S.S. resided. After that, the parents did not visit Alisha. The Agency spent three weeks
trying to find the parents. In early June, the social worker met with Arleen again and with
Scott for the first time. The social worker gave the parents referrals to drug treatment and
counseling. Arleen walked out of the meeting before it was over.
The parents subsequently failed to stay in touch with the Agency and the foster parent.
The Agency attempted to contact the parents by telephone, letters and home visits. The only
response was two voice mail messages from Scott. The social worker called back several
times but was unable to reach Scott.
In June 2013, the court found that ICWA applied.4 In August, the court made a true
finding on the petition and ordered Alisha placed in foster care. The court ordered
reunification services for the parents, concluding, inter alia, that section 361.5, subdivision
(b)(10), an exception to the general entitlement to reunification services (§ 361.5, subd. (a)),
did not apply to Scott.5
DISCUSSION
4 Arleen is a member of an Indian tribe and Alisha is eligible to apply for enrollment.
5 Alisha's trial counsel and Sheldon recommended denying the parents services. The
Agency recommended granting services.
4
Section 361.5, subdivision (b)(10) allows the court to deny reunification services if "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 . . . pursuant to Section 361 and that parent . . . is
the same parent . . . described in subdivision (a) 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 . . . ." "The court shall not
order reunification for a parent . . . described in [section 361.5, subdivision (b)(10)] unless the
court finds, by clear and convincing evidence, that reunification is in the best interest of the
child." (§ 361.5, subd. (c).)
Here, the court determined that section 361.5, subdivision (b)(10) was inapplicable to
Scott because S.S. had not been removed from his custody pursuant to section 361. As to
Arleen, the court determined that section 361.5, subdivision (b)(10) did apply and reunification
would not be in Alisha's best interests pursuant to section 361.5, subdivision (c). However,
citing ICWA and the fact that Scott would receive services, the court concluded that it would
be in Alisha's best interests for Arleen to receive services. "In all Indian child custody
proceedings, . . . the court shall . . . strive to promote the stability and security of Indian tribes
and families, comply with [ICWA], and seek to protect the best interest of the child." (§ 224,
subd. (b).)
5
Alisha's appellate counsel contends the denial of S.S.'s placement with Scott, pursuant
to section 361.2, subdivision (a),6 is consonant with a removal pursuant to section 361, for
purposes of section 361.5, subdivision (b)(10). We disagree.
" ' "[I]f the statutory language is not ambiguous, then we presume the Legislature meant
what it said, and the plain meaning of the language governs." ' [Citation.] ' "Appellate courts
may not rewrite unambiguous statutes" ' or 'rewrite the clear language of [a] statute to broaden
the statute's application.' [Citation.]" (In re B.L. (2012) 204 Cal.App.4th 1111, 1116.) Section
361.5, subdivision (b)(10) unambiguously requires previous removal of a sibling or half sibling
from the parent pursuant to section 361. (In re B.L., at p. 1116; Melissa R. v. Superior Court
(2012) 207 Cal.App.4th 816.) S.S. was not removed from Scott's custody. Thus, the court
properly concluded that section 361.5, subdivision (b)(10) did not apply to Scott.
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
IRION, J.
6 Scott asserts "it is not at all clear the juvenile court made its detriment findings
regarding placement of [S.S.] with [Scott] under section 361.2" and that as an alleged father, he
was not eligible for placement pursuant to section 361.2. We need not discuss this assertion.
6