In re Giovanni D. CA2/8 ( 2015 )

Filed 9/22/15 In re Giovanni D. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re GIOVANNI D., a Person Coming B262788
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. DK08977)
FAMILY SERVICES,
Plaintiff and Respondent,
v.
ALBERTO D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. Philip
Soto, Judge. Affirmed.
Julie E. Braden, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mary C. Wickham, Interim County Counsel, Dawyn R. Harrison, Assistant
County Counsel, Tracey M. Blount, Deputy County Counsel, for Plaintiff and
Respondent.
_________________________________
Father Alberto D. challenges a juvenile court order denying him family
reunification services. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In late 2014, 12-year-old Giovanni D. was living with his mother, Constanza O.,
his 17-year-old sister, Crystal O., Crystal’s husband, and the maternal grandmother.1
Father had been in prison since 2009. Mother had a history of substance abuse and had in
the past left Giovanni without support. According to the reports of the Los Angeles
County Department of Children and Family Services (DCFS), the maternal grandmother
was at one time Giovanni’s legal guardian. The reports do not explain when or how the
guardianship terminated. Giovanni also lived with a maternal aunt in Virginia for a year
and a half. He returned to California in April 2014.
Giovanni had been diagnosed with ADHD and ADD. He was prescribed
medication for both conditions, and saw a therapist and psychiatrist. The maternal
grandmother told DCFS Giovanni had been placed on a psychiatric hold earlier in the
year because every time he became upset he threw things around the house. Mother
informed DCFS the previous hold was in August 2014, after Giovanni threatened to kill
her.
In November 2014, Giovanni became upset with mother because he suspected her
of drinking and feared she would leave him. He screamed and threw things; threw his
telephone and broke it; and tried to take mother’s phone. Giovanni then placed mother in
a headlock, choking her in the process. Mother bit and scratched him. Giovanni
subsequently grabbed a knife and poked holes in the wall. He also banged his head
against a wall and suggested he would seriously injure himself. Crystal called the police.
Giovanni was briefly held in a psychiatric hospital after the incident. DCFS became
involved.
1 Crystal turned 18 in December 2014.
2
In mid-December 2014, mother left the home without informing her family
members of her whereabouts. Giovanni was left with Crystal and the maternal
grandmother. Mother had Giovanni’s prescription medication and left without providing
Crystal with authorization to refill the prescription. As a result, Giovanni was unable to
take his medication. Mother had started using methamphetamines in October 2014. In
late December, while “using on the streets,” mother suffered a drug-related heart attack.
Eventually mother gave Crystal a letter giving her temporary custody of Giovanni.
Mother admitted to DCFS that she was unable to care for Giovanni. She wanted him to
stay with Crystal. In January 2015, the juvenile court detained Giovanni.
DCFS interviewed father for a February 2015 jurisdiction and disposition report.
The report noted father had a long criminal history involving charges for drug possession,
theft, and residential burglary. He admitted to using methamphetamines before he was
arrested in 2008. Although father was scheduled to be released from prison in October
2015, he informed DCFS that he was facing deportation upon his release. He intended to
challenge the deportation. He had not seen Giovanni since 2008. Father had no
knowledge of the allegations in the dependency petition. However, he believed the
maternal grandmother and Crystal had cared well for Giovanni, and he wanted Giovanni
to stay with them. Giovanni told DCFS he had not had any direct contact with father for
around eight years. Crystal was committed to keeping Giovanni with her. She indicated
Giovanni had behavior issues, “especially anger issues,” but he was loving and respectful
with her and the maternal grandmother. DCFS recommended the court deny father
reunification services. Mother was by this time in custody, awaiting criminal
proceedings.
At the February 2015 jurisdiction hearing, mother pleaded no contest to a
dependency petition containing allegations that her drug use, her failure to regularly
provide Giovanni with his daily medication, and her failure to make appropriate plans for
his care, placed him at risk of harm within the meaning of Welfare and Institutions Code
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section 300, subdivision (b).2 The juvenile court found Giovanni to be a person
described by the statute. Regarding disposition, father asked that Giovanni be released to
him, with the understanding that his plan would be to have Giovanni stay with Crystal.
The court rejected the request, finding it would be detrimental for Giovanni to be placed
with father. Father alternatively requested reunification services, arguing there was no
basis to deny them. Giovanni’s counsel agreed there was no basis to deny father
reunification services. However, when the court asked Giovanni’s counsel if a visit with
the parents could be arranged after that day’s hearing, counsel informed the court that
Giovanni did not wish to visit either parent. The court continued the disposition hearing
to allow DCFS to determine if there were services that would be appropriate to try to
reunify father with Giovanni.
In a subsequent interview with DCFS, Giovanni indicated he lived with father
between the ages of three and five.3 He remembered only that father was nice. He had
not seen father since 2008, when he was five years old. DCFS reported: “Giovanni
. . . further stated that he is not interested in having visits or living with his father since
he does not have a relationship with his father, and is not sure if he is ready to establish a
relationship with his father since it had been a long time since they talked or had direct
contact.”
Father told DCFS that when he was released in October 2015, he would most
likely be deported to Mexico, although he intended to fight the deportation. If he was
deported he would temporarily reside in Tijuana, but he might move somewhere else in
Mexico. Father said he first needed to stabilize his living situation “to determine if [he]
could take care of Giovanni.” He admitted Giovanni had no relationship with him. He
had lived with Giovanni and mother the first two years of Giovanni’s life, until father
went to jail in 2002. Upon his release in 2004, father lived with Giovanni and mother
briefly before returning to jail that same year. He was released in 2006, and lived with
2 All further statutory references are to the Welfare and Institutions Code.
3 By the time of the report, Giovanni was two months away from his 13th birthday.
4
Giovanni and mother for two more years before again being incarcerated. Father thought
substance abuse programs, parenting classes, and counseling might be available to him in
prison, however he noted: “[A]t this time I think I need to regain my son Giovanni’s trust
and reestablish a relationship.” Father had asked Giovanni to write to him, but it
appeared to father that Giovanni was too overwhelmed. He intended to start writing to
Giovanni and progress to telephone conversations until his release. He was willing to
participate in counseling sessions with Giovanni, or to submit to drug testing in
California or in Mexico.
At the continued disposition hearing in March 2015, Giovanni’s counsel indicated
his client had no desire to reunify with father, had no relationship with father, and did not
want to visit with father. Still, counsel supported giving father reunification services, on
the theory that since mother was to receive services, the same should be provided to
father who, unlike mother, had a release date from prison. The juvenile court denied
father’s request for reunification services, pursuant to section 361.5, subdivision (e).
Among other things, the court noted it was not clear father would be able to avoid
deportation. Giovanni did not want to see father, which, the court noted, would make it
very difficult to effectuate visitation. The court concluded there was no reasonable hope
services would lead to reunification with father. Father’s counsel confirmed with the
court that it was making a detriment finding by clear and convincing evidence.4
Father’s appeal followed.
4 The juvenile court responded to father’s counsel’s question about clear and
convincing evidence by stating: “True, by clear and convincing evidence leads me to
believe that it’s a detriment for the child to be returned to the father.” Although the court
mentioned placement, it had already made a placement finding at the previous hearing,
and the sole purpose of the March proceeding was to determine whether father would
receive reunification services. It thus appears the juvenile court intended to refer to
reunification services, not placement. Father does not argue on appeal that the court
failed to apply the clear and convincing evidence standard to the detriment finding.
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DISCUSSION
The Juvenile Court Did Not Err in Denying Father Reunification Services
On appeal, father contends the juvenile court erred in denying reunification
services on the ground that they would be futile, rather than that the services would be
detrimental. Father further argues there was no substantial evidence of detriment. We
disagree.
A. Substantial Evidence Supported the Juvenile Court’s Detriment Finding
Under section 361.5, subdivision (a), when a child is removed from the parent’s
home, reunification services generally must be offered to the parent, “ ‘ “in an effort 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.
[Citation.]” [Citations.]’ ” (In re D.H. (2014) 230 Cal. App. 4th 807, 815 (D.H.).) Section
361.5 also applies when, as in this case, a noncustodial parent is denied custody of the
child under section 361.2, subdivision (b). (In re Adrianna P. (2008) 166 Cal. App. 4th
44, 54, 59.)
Under section 361.5, subdivision (e)(1):
“If the parent or guardian is incarcerated, institutionalized, or detained by the
United States Department of Homeland Security, or has been deported to his or her
country of origin, the court shall order reasonable services unless the court determines, by
clear and convincing evidence, those services would be detrimental to the child. In
determining detriment, the court shall consider the age of the child, the degree of parent-
child bonding, the length of the sentence, the length and nature of the treatment, the
nature of the crime or illness, the degree of detriment to the child if services are not
offered and, for children 10 years of age or older, the child’s attitude toward the
implementation of family reunification services, the likelihood of the parent’s discharge
from incarceration, institutionalization, or detention within the reunification time
limitations described in subdivision (a), and any other appropriate factors. In determining
the content of reasonable services, the court shall consider the particular barriers to an
incarcerated, institutionalized, detained, or deported parent’s access to those court-
mandated services and ability to maintain contact with his or her child, and shall
document this information in the child’s case plan.”5
5 The statute also provides that reunification services may include the maintenance
of contact between parent and child through telephone calls, transportation and visitation
6
Substantial evidence supported the juvenile court order denying father
reunification services on the ground that such services would be detrimental to Giovanni.
(D.H., supra, 230 Cal.App.4th at p. 815; In re James C. (2002) 104 Cal. App. 4th 470, 484
(James C.).) Giovanni was almost 13 years old and had last had direct contact with father
when he was only five years old. He had no relationship with father, was at best unsure if
he wanted a relationship with father, and affirmatively refused to have any contact with
father. He did not wish to visit father. (Kevin R. v. Superior Court (2010) 191
Cal. App. 4th 676, 691 [visitation is an essential component of a family reunification
plan].) Although father was scheduled for release in less than one year, he acknowledged
that he would likely be deported. He also acknowledged he had no relationship with
Giovanni.
Thus, father was essentially a stranger to Giovanni. He had been absent for
approximately two-thirds of Giovanni’s life, due to repeated incarcerations and a lack of
contact with Giovanni during those periods of incarceration. (In re James C., supra, 104
Cal.App.4th at pp. 485-486 [lack of parent-child relationship was evidence supporting
denial of reunification services to incarcerated parent].) Giovanni was opposed to having
any contact with father. Father admitted that his situation would be uncertain for some
time to come, suggesting that while he would be released approximately four months
before the end of the 12-month reunification period (§ 361.5, subd. (a)(1)(A)), a return of
Giovanni to father’s custody would not be possible for some time even after father’s
release from prison. Further, there was evidence in the record regarding Giovanni’s
extreme response to the instability caused by mother’s conduct, indicating his need for
stability and permanence. The lack of a parent-child relationship, Giovanni’s opposition
to having any contact with father, Giovanni’s age, and his documented emotional or
services where appropriate, and reasonable services to those providing care for the child.
In addition, the incarcerated or detained parent may be required to attend counseling,
classes, or other programs if “actual access” to such services is provided. (§ 361.5, subd.
(e)(1).)
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behavioral issues, supported the juvenile court’s determination that providing
reunification services to father would be detrimental to Giovanni.
We further disagree that the juvenile court erred in finding detriment based on the
likely futility of reunification services. The record indicates the juvenile court explicitly
considered factors specifically identified in section 361.5, subdivision (e)(1) to determine
detriment, including the degree of parent-child bonding and Giovanni’s attitude toward
the implementation of family reunification services. In addition, section 361.5,
subdivision (e)(1) directs the court to consider “any other appropriate factors” in
determining detriment. Father has pointed to no authority for the proposition that a
juvenile court may not consider the likelihood that reunification efforts will fail as one
appropriate factor in determining whether providing such services would be detrimental
to the child.6
In re Kevin N. (2007) 148 Cal. App. 4th 1339, 1344, does not require a contrary
result. In Kevin N., the juvenile court concluded that even if the incarcerated father
received 18 months of reunification services, providing them would be futile because he
would be released only one month before the reunification period ended. The juvenile
court denied reunification services on that basis alone. The court of appeal reversed and
remanded, explaining the juvenile court had not found providing reunification services
would be detrimental to the children. The juvenile court had never addressed detriment.
(Id. at pp. 1344-1345.) In contrast, here the juvenile court considered the detriment to
Giovanni in providing father reunification services, not only due to the likelihood
6 Indeed, in Fabian L. v. Superior Court (2013) 214 Cal. App. 4th 1018, the court
agreed with the reasoning of a respected dependency treatise in its conclusion that in
some cases, providing reunification services to an incarcerated parent who will not be
released before the end of the reunification period, or who does not have access to
rehabilitative services, results in services that have little or no likelihood of success, “and
thus only serves to delay stability for the child.” (Id. at pp. 1030-1031.) In such cases, it
may be that “providing services to the incarcerated parent would be detrimental to the
child since it would delay permanency with no likelihood of success.” (Id. at p. 1031.)
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services would fail to reunify father and Giovanni, but also Giovanni’s opposition to
contact with father and the lack of any parent-child relationship. Substantial evidence
supported the detriment finding.
DISPOSITION
The juvenile court order is affirmed.
BIGELOW, P. J.
We concur:
RUBIN, J.
FLIER, J.
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