In re R.M. CA2/6 ( 2020 )

Filed 9/16/20 In re R.M. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re R.M. et al., Persons 2d Juv. No. B303104
Coming Under the Juvenile (Super. Ct. Nos. 19JV00301,
Court Law. 19JV00302)
(Santa Barbara County)
SANTA BARBARA COUNTY
CHILD WELFARE SERVICES,
Plaintiff and Respondent,
v.
R.M.,
Defendant and Appellant.
R.M. (Father) appeals the juvenile court’s order
bypassing reunification services for him and his two children
(collectively Children) because Father was convicted of violent
felonies. (Welf. & Inst. Code,1 § 361.5, subd. (b)(12).) We affirm.
FACTUAL AND PROCEDURAL HISTORY
In June 2019, Santa Barbara County Child Welfare
Services (CWS) received a referral after the Children’s mother2
tested positive for amphetamines and opiates when she gave
birth to another child. The mother agreed to enter a residential
treatment program while the maternal grandmother cared for
the Children and the baby. About a month later, the mother left
the program. CWS contacted the grandmother, who said that the
mother came to the grandmother’s home but then left with the
baby. CWS took the Children into protective custody. The
whereabouts of the mother and the baby were unknown. CWS
located Father, who was in prison.
In August, CWS filed an amended petition, alleging
that Father had a criminal history which “reflects a pattern of
behavior associated with substance abuse and dangerous
criminal acts that puts the [Children] at risk for abuse and/or
neglect.” His criminal history includes, “multiple counts of [drug
offenses], evading a police officer, possession of a controlled
substance in prison, multiple counts of sex with a minor, . . .
vehicle theft, battery, multiple parole violations, possession of a
hypodermic needle and narcotic, possession of unlawful
paraphernalia, kidnapping for [ransom], torture, and transport of
a controlled substance in relation to a street gang.” The petition
1Further unspecified statutory references are to the
Welfare and Institutions Code.
2 The mother is not a party to the dependency proceedings.
2
also alleged Father was incarcerated. The juvenile court
sustained the petition, finding all the allegations to be true.
In the disposition report, CWS recommended that
reunification services for Father be bypassed pursuant to section
361.5, subdivisions (b)(12) and (e)(1).3 The report stated that in
January 2013, Father was arrested for kidnapping for extortion
and torture. (Pen. Code, §§ 206, 209, subd. (a).) He was
convicted of both crimes and sentenced to 18 years in state prison
followed by life without the possibility of parole. The report also
noted that there was “clear and convincing evidence” that
kidnapping and torture are serious and violent felonies pursuant
to Penal Code section 667.5, subdivision (c)(8) and (14). An
amended disposition report stated that the Children were placed
with their maternal grandmother.
At the disposition hearing, the CWS social worker
testified that she contacted Pelican Bay State Prison, where
Father was incarcerated. The prison said there were “many
rehabilitative courses offered.” The social worker noted that
before his incarceration in 2013, the Children, who were born in
2009 and 2010, lived with Father. She reported that while in
Pelican Bay, Father had weekly phone calls with the Children.
When Father was housed at Santa Barbara County Jail for the
juvenile proceedings, he had two visits with the Children. The
social worker acknowledged that the Children had a bond with
Father and that family bonds were important for them. She had
3 Section 361.5, subdivision (e)(1) provides that if a parent
is “incarcerated . . . the court shall order reasonable services
unless the court determines, by clear and convincing evidence,
those services would be detrimental to the child.”
3
no objection to Father communicating with the Children by
phone and letters, nor did she object to family members taking
the Children to visit Father. However, she testified that CWS
recommended bypassing reunification services because Father
“would not be able to reunify with his children in the 18-month
time period” due to his prison sentence.
Father testified that when he was incarcerated in
Santa Barbara County Jail (in 2013 and 2014), he had weekly
visits with the Children. After his conviction, he was initially
transferred to Wasco State Prison. In June 2016, he was
transferred to Pelican Bay. When he first arrived at Pelican Bay,
he was allowed only one phone call a month, which he used to
talk to the Children. His privileges later increased to daily phone
calls, and he called the Children once a week. He also wrote a
letter to them once a week. Father participated in classes at
Pelican Bay, including in-house “educational and spiritual”
studies. There were other programs available, but they had
waiting lists. Father also said there was a visitation center at
Pelican Bay, but he never met with the Children there.
Father testified that reunification services would be
in the best interest of the Children because “family is important”
and that he could “project them in the right direction.” He said
that if the court ordered reunification services, he “wouldn’t think
twice” about participating. Father expressed his intent to
request a transfer to a prison located closer to the Children so he
could meet personally with them. He said the reunification
services would help “continue the bond” with the Children.
Father said that he supports the Children’s placement with their
grandmother.
4
At the conclusion of the detention hearing, the court
found by clear and convincing evidence that section 361.5,
subdivision (b)(12) applied and denied reunification services for
Father. It did not find section 361.5, subdivision (e)(1) applied to
this case. The court noted that if Father’s conviction was
reversed on appeal, he could file a modification request to have
services reinstated.
DISCUSSION
Father argues the trial court erred when it bypassed
reunification services because reunification would be in the best
interest of the Children.4 We disagree.
When a child is removed from a parent’s custody,
reunification services must be offered to the parent unless one of
several statutory exceptions applies. (§ 361.5, subd. (a).) Section
361.5, subdivision (b)(12) is one exception. The juvenile court
“need not” provide reunification services, if it is established by
clear and convincing evidence that the parent “has been convicted
of a violent felony, as defined in subdivision (c) of [s]ection 667.5
of the Penal Code.” (§ 361.5, subd. (b)(12).) If an exception
applies, the juvenile court “shall not order” reunification services
for the parent, unless it finds “by clear and convincing evidence,
that reunification is in the best interest of the child.” (§ 361.5,
subd. (c)(2).) “‘Once it is determined one of the situations outlined
in subdivision (b) applies, the general rule favoring reunification
is replaced by a legislative assumption that offering services
4In his opening brief, Father also contends that CWS did
not conduct proper notice and inquiry pursuant to the Indian
Child Welfare Act (ICWA). After the opening brief was filed,
CWS completed its ICWA notice and inquiry process. Father
concedes the issue is now moot. We agree.
5
would be an unwise use of governmental resources. [Citation.]’”
(Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744.) The
burden is on the parent to show that reunification would serve
the best interest of the child. (In re William B. (2008) 163
Cal.App.4th 1220, 1227.) We review the juvenile court’s order for
substantial evidence. (In re James C. (2002) 104 Cal.App.4th
470, 484 (James C.).)
Father concedes he was convicted of kidnapping and
torture, which are violent felonies. (Pen. Code, § 667.5, subd.
(c)(8) & (14).) Thus, section 361.5, subdivision (b)(12) applies.
The only issue is whether the juvenile court properly concluded
that Father did not show reunification was in the best interest of
his Children.
Fabian L. v. Superior Court (2013) 214 Cal.App.4th
1018 (Fabian L.) is instructive. There, the Court of Appeal
upheld the termination of reunification services for an
incarcerated father. In so doing, the court reasoned that “‘there
are many cases in which the provision of . . . services has little or
no likelihood of success and thus only serves to delay stability for
the child, particularly if the incarcerated parent is the only
parent receiving services. This is especially true when the parent
will be incarcerated longer than the maximum time periods for
reunification efforts. . . . Indeed, to attempt services in such
circumstances may be setting everyone up for failure, including
the parent, agency, and child. Thus, in cases such as these, it
may be possible to show 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
pp. 1030-1031, original italics.)
6
This case presents a similar circumstance where
providing services would delay permanency for the Children and
would not be in their best interest. Father was sentenced to life
without the possibility of parole and will be incarcerated long
after the maximum time period for reunification expires. (See
Fabian L., supra, 214 Cal.App.4th at pp. 1030-1031; James C.,
supra, 104 Cal.App.4th at p. 486 [substantial evidence supported
denial of reunification services where the father was convicted of
violent felonies and his release date from prison exceeded the
maximum period of reunification services].) The services for the
Children’s mother were also terminated, which further increases
the need for stability for the Children. Substantial evidence
supports the trial court’s denial of Father’s reunification services.
DISPOSITION
The order bypassing reunification services is
affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
7
Arthur A. Garcia, Judge
Superior Court County of Santa Barbara
______________________________
Terence M. Chucas, under appointment by the Court
of Appeal, for Defendant and Appellant.
Michael C. Ghizzoni, County Counsel, Lisa A.
Rothstein, Deputy County Counsel, for Plaintiff and Respondent.