In re E.S. CA4/1 ( 2023 )

Filed 10/9/23 In re E.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 E.S., a Person Coming Under
the Juvenile Court Law.
D082104
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. EF4484)
Plaintiff and Respondent,
v.
R.S. et al,
Defendants and Respondents;
E.S., a Minor,
Appellant.
APPEAL from an order of the Superior Court of San Diego County, Ana
L. Espana, Judge. Affirmed.
Neale B. Gold, under appointment by the Court of Appeal, for
Defendant and Appellant, E.S.
Richard L. Knight, under appointment by the Court of Appeal, for
Defendant and Respondent, R.S.
Emily Uhre, under appointment by the Court of Appeal, for Defendant
and Respondent, M.G.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy
County Counsel, and Natasha C. Edwards, Deputy County Counsel, for
Plaintiff and Respondent.
E.S., a child subject to juvenile dependency, appeals from the juvenile
court’s dispositional order granting reunification services to her father, R.S.
(Father). E.S. argues substantial evidence does not support the court’s order,
nor was it in her best interests for Father to receive services. We affirm the
juvenile court’s order granting reunification services.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father have seven children together,1 including their
newborn daughter, E.S.2 The family has an extensive history of involvement
with child protective services, including 19 referrals in San Diego County and
seven referrals in the state of Utah. The referrals detail incidents of domestic
violence between the parents and the parents’ struggles with substance
abuse, as well as allegations of neglect and abuse of the children.
In September 2021, the children were taken into protective custody
when Mother was arrested for driving her vehicle under the influence of
alcohol with the children in the car. The Agency filed juvenile dependency
petitions that detailed this incident as well as Mother and Father’s inability
to maintain their sobriety. The petitions also discussed Father’s failure to
participate in the services required by his case plan in a prior dependency
1 Father is the presumed father of one of the children, X.G., whom
Father raised from a young age after the death of her natural father.
2 E.S.’s siblings are not the subject of this appeal and are discussed only
when relevant.
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case. The juvenile court made true findings on the petitions and the children
were declared dependents of the juvenile court.
During the 2021 dependency case, Father was offered substance abuse
treatment, domestic violence services, parenting classes, and mental health
services. The Agency reported that Father made “little to no progress” in his
case plan, failed to drug test, and inconsistently visited with the children. At
the 12-month review hearing in December 2022, the juvenile court
terminated Father’s reunification services.
In January 2023, a few weeks after Father’s reunification services were
terminated, Mother and Father had their seventh child, E.S. While Mother
was at the hospital following E.S.’s birth, the Agency received a referral that
Mother was behaving aggressively and screaming at her nurses. The
hospital staff observed her hoarding diapers and formula in her belongings.
Although Father was present when Mother yelled at the nurses, he did not
react and did not speak to the hospital staff. An Agency social worker met
with Mother and Father at the hospital, and they agreed to place E.S. in her
paternal grandmother’s care as part of a safety plan.
The Agency then filed a petition on E.S.’s behalf alleging that she was
at substantial risk of harm because of Mother’s and Father’s inability to
supervise or protect her, noting Mother’s hostile behavior toward the hospital
staff following her birth. (Welf. & Inst. Code,3 § 300, subd. (b)(1).) The
petition discussed the parents’ history of substance abuse and domestic
violence that led to the juvenile dependency case involving E.S.’s six siblings.
It further alleged that Father tested positive for methamphetamine on
3 Unspecified statutory references are to the Welfare and Institutions
Code.
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January 18, 2023, and that he failed to participate in the services required by
his case plan in the prior dependency case.
At the detention hearing, the juvenile court made prima facie findings
that E.S. fell within the jurisdiction of the juvenile court and detained her in
out-of-home care. The court authorized Father to have liberal supervised
visitation and ordered the Agency to provide the parents with voluntary
services to effectuate reunification.
Following the detention hearing, E.S. was placed in a foster home after
her grandmother indicated she was no longer able to care for her. One of
E.S.’s caregivers supervised Father’s visitation and documented the nature of
his visits. The caregiver reported that Father was excited to see E.S., and
that he fed her, changed her diaper, and behaved appropriately. Father told
the Agency that E.S.’s caregivers were “awesome and attentive,” and that
they kept him updated with photographs.
In conversations with the Agency social worker, Father expressed his
desire to participate in reunification services. When asked what he needed to
do to successfully reunify with E.S., Father stated, “I know I need to do the
classes. That is pretty much it.” During this period, Father reported working
full time and Mother told the Agency that he was paying her rent to prioritize
“get[ting] the children back.”
In a report prepared for the jurisdiction and disposition hearing, the
Agency recommended that the juvenile court deny Father reunification
services pursuant to section 361.5, subdivision (b). The Agency cited to
Father’s failure to participate in services in the dependency case involving
E.S.’s siblings, including domestic violence and substance abuse treatment,
as well as his positive test for methamphetamine in January 2023. The
Agency opined that Father’s past poor performance indicated there were no
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reasonable services that would resolve the protective issues involving E.S.,
and therefore it was in her best interests to bypass reunification services.
The contested jurisdiction and disposition hearing took place in April
2023. The juvenile court received the Agency’s reports in evidence and took
judicial notice of the petitions, findings, and orders in the half-siblings’ case
files. The court also heard testimony from an Agency social worker and
Father.
The social worker testified that Father kept in regular contact with her
since she became involved in the dependency case involving E.S. She
acknowledged that Father indicated his desire to participate in every service
available to him in order to reunify with E.S. The social worker told the
court that Father was participating in a domestic violence program and a
“sexual offenders group.”
Father testified he had consistent visitation with E.S. throughout the
dependency case, only missing one visit due to illness. He asserted that,
since the initiation of the dependency case involving E.S., it has been his
intention to participate in every service available to him. Father informed
the court that he was attending weekly domestic violence classes and that he
had attended five meetings of a sexual offender group. Although Father had
not yet started parenting classes, he explained that his enrollment was
delayed because an incorrect phone number was provided to the program.
The social worker confirmed that the program was provided an incorrect
phone number.
When asked whether he believed it was appropriate for the Agency to
offer him reunification services, Father responded, “I think at the time [of
E.S.’s siblings’ dependency cases] I wasn’t really—I didn’t really have the
knowledge of how this can affect my family and myself. I wasn’t sure how
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critical it was for me to participate in these classes and these groups, how
important they were to be able to be reunified or back in touch with my
family. I—honestly, I didn’t think I took it very serious.” He told the court,
“[E.S.] has opened my eyes up. I realize these are my kids. I need to be in
their life just as much as they need to be in mine. And I just—I think I need
to change the way I felt about being in the groups and participating and give
it more effort, give it all my effort and not just halfway like I was doing.”
In its closing argument, the Agency asked the juvenile court to bypass
reunification services for Father pursuant to section 361.5, subdivision
(b)(10). The Agency acknowledged Father’s participation in domestic violence
classes and his testimony in which he expressed his willingness to continue
engaging in services. However, the Agency argued Father’s progress was
minimal and that he demonstrated a lack of insight as to why services were
needed. E.S.’s counsel joined the Agency’s position, arguing that Father’s
efforts were minimal and his participation in limited programming did not
amount to a “reasonable effort,” particularly considering his long history with
child welfare services.
After considering the evidence and arguments of counsel, the juvenile
court found the petition’s allegations true by clear and convincing evidence.
The court then ordered the Agency to provide Father with reunification
services, explaining the following in issuing its decision:
“[I]t is the court’s intent to offer Father services. And you know,
it is—it was very compelling when I was reading the reports,
reviewing the information, that he visits—and I heard no
problem with that—that he visits regularly and that’s pretty good
because, frankly, we don’t always see that from our parents.
“And yes, he could have done more for today’s date, but he is in
the D.V. group. He needs to continue in the D.V. group. It has to
be part of his case plan. He’s in the sex offender group. He has
been in five sessions, by his testimony, going once a week. I
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recognize also that he essentially denies concerns regarding
substance abuse, domestic violence, and sex abuse; so I recognize
the work is going to be difficult, I think, maybe with him. But he
does appear to be motivated to learn.
“I appreciated his testimony that he recognized that he was not
in the best place perhaps to take those prior services as seriously
as he should have, and it resulted in termination of reunification
services as to his other kids. So I appreciate that he’s learned a
very hard lesson from that to do all he can with regard to this
child to do those services and put himself in the best place to be a
support for the mother or to reunify with his daughter directly.
“I note also that—this was in my mind as well—that the agency
is offering services to the mother. She has had three prior
dependency cases as well. Both of them have quite an extensive
history with child welfare services, but I feel that we ought to
give the father an opportunity here.”
E.S. timely appealed the juvenile court’s order granting Father
reunification services and the Agency has filed a letter brief joining E.S.’s
position on appeal.
DISCUSSION
It is presumed in dependency cases that parents will receive
reunification services. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th
87, 95 (Cheryl P.).) Nonetheless, subdivision (b) of section 361.5 “sets forth
certain exceptions—also called reunification bypass provisions—to this
‘general mandate of providing reunification services.’ ” (In re Allison J.
(2010) 190 Cal.App.4th 1106, 1112.) “When the court determines a bypass
provision applies, the general rule favoring reunification is replaced with a
legislative presumption that reunification services would be ‘ “an unwise use
of governmental resources.” ’ ” (Ibid.)
We review a juvenile court’s determination that a bypass provision in
section 361.5, subdivision (b), applies for substantial evidence. (See R.T. v.
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Superior Court (2012) 202 Cal.App.4th 908, 914 (R.T.) [“An order denying
reunification services is reviewed for substantial evidence.”]; Cheryl P., supra,
139 Cal.App.4th at p. 96 [“A court reviews an order denying reunification
services under section 361.5, subdivision (b) for substantial evidence.”].) We
note, however, that at the dispositional hearing, the Agency bore “the burden
of proving the threshold issue of whether a bypass provision applie[d].” (In re
T.R. (2023) 87 Cal.App.5th 1140, 1148.) When the issue on appeal is whether
the party who bore the burden of proof met the applicable burden, the
substantial evidence standard is weightier. (In re I.W. (2009) 180
Cal.App.4th 1517, 1528, disapproved on other grounds in Conservatorship of
O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) In such a case, under the substantial
evidence standard, the question “for a reviewing court becomes whether the
evidence compels a finding in favor of the appellant as a matter of law” or,
put another way, “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 a finding.’ ” (In
re I.W., at p. 1528.) With this standard in mind, we conclude the evidence
does not compel a finding that Father must be denied reunification services
as a matter of law.
Subdivision (b)(10) of section 361.5 allows the court to bypass
reunification services if the court finds by clear and convincing evidence that
“(1) a juvenile court ordered termination of reunification services for a
sibling; (2) termination was ordered because that parent failed to reunify
with the sibling; (3) the sibling had been removed from that parent’s custody
pursuant to section 361; and (4) that parent has not subsequently made a
reasonable effort to treat the problems that led to the sibling’s removal from
that parent.” (In re Gabriel K. (2012) 203 Cal.App.4th 188, 194.) Here, the
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juvenile court took judicial notice of the orders in E.S.’s siblings’ dependency
files that demonstrated Father’s services were terminated because he failed
to make sufficient progress toward reunification. The judicially noticed
orders establish the first three prongs of section 361.5, subdivision (b)(10): (1)
Father was denied reunification services; (2) after failing to reunify with the
children; (3) who were in protective custody. The parties disagree, however,
as to whether the evidence compels a finding that Father failed to make
reasonable efforts to address the issues leading to E.S.’s siblings’ removals.
In assessing a parent’s efforts to treat the problems that led to the
removal of the dependent child’s siblings, the juvenile court may 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. . . .” (R.T., supra,
202 Cal.App.4th at p. 914, italics omitted.) “The reasonable effort
requirement focuses on the extent of a parent’s efforts, not whether he or she
has attained ‘a certain level of progress.’ [Citation.] ‘To be reasonable, the
parent’s efforts must be more than “lackadaisical or half-hearted.” ’
[Citation.] However, ‘[t]he “reasonable effort to treat” standard “is not
synonymous with ‘cure.’ ” ’ ” (Ibid.)
Here, the juvenile court did not make an express finding that Father
made reasonable efforts to treat the problems leading to E.S.’s siblings’
removals. But in rendering its decision, the court detailed Father’s
participation in his domestic violence classes and sexual offender group, and
it credited Father’s testimony in which he expressed a commitment to
engaging with the services. The court’s order granting Father reunification
services, and its commentary finding that Father was engaged in his case
plan, establish an implied finding that he was making reasonable efforts to
treat the problems leading to the removal of his other children. (See In re
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Y.M. (2012) 207 Cal.App.4th 892, 918–919 [implying finding where “ample
evidence supports the finding” and “[t]he result is obvious from the record”];
see also In re Lana S. (2012) 207 Cal.App.4th 94, 107–108 [reviewing implied
finding of no “reasonable effort” by parent for substantial evidence].)
We conclude substantial evidence supports the juvenile court’s implied
finding that Father made reasonable efforts to treat the issues precipitating
the prior dependency cases. Although Father only participated in three
domestic violence classes and five “sex offender group” classes as of the April
2023 hearing, the court explained that it “appreciated [Father’s] testimony
that he recognized that he was not in the best place perhaps to take those
prior services as seriously as he should have, and it resulted in termination of
reunification services as to his other kids. So [the court] appreciate[s] that
he’s learned a very hard lesson from that to do all he can with regard to this
child to do those services and put himself in the best place to be a support for
the mother or to reunify with his daughter directly.” The juvenile court’s
comments suggest it relied on shifts in Father’s perspective and behavior to
conclude that further reunification services would not be fruitless, which is
relevant evidence for the court to consider. (See Renee J. v. Superior Court
(2002) 96 Cal.App.4th 1450, 1464 [in considering application of a bypass
provision, juvenile court properly considered “significant changes in [the
parent’s] lifestyle since the removal of [their] other children” to determine
whether “further efforts to deal with the problem would not have been
‘fruitless.’ ”].)
Although E.S. emphasizes evidence that would support a contrary
conclusion—characterizing Father’s efforts as “lackadaisical at best”—it is
not the function of this court “to retry the case.” (In re I.W., supra, 180
Cal.App.4th at p. 1528.) The juvenile court credited Father’s testimony and
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his testimony is sufficient to constitute substantial evidence to support the
court’s finding. (In re Marriage of F.M. & M.M. (2021) 65 Cal.App.5th 106,
119 [“ ‘The testimony of one witness, even that of a party, may constitute
substantial evidence’ ”].) Dependency cases often pose evidentiary conflicts,
and juvenile courts are tasked and uniquely suited with making “highly
subjective evaluations about competing, not necessarily conflicting, evidence.”
(In re I.W., at p. 1528.) We may not reweigh the juvenile court’s credibility
findings in making these subjective evaluations on appeal. (In re Dakota H.
(2005) 132 Cal.App.4th 212, 228; see also J.M. v. G.H. (2014) 228 Cal.App.4th
925, 935 [we must “draw all reasonable inferences in support of the court’s
ruling and defer to the court’s express or implied findings when supported by
substantial evidence.”].)
Further, evidence in the Agency’s reports, as well as the social worker’s
testimony, support the juvenile court’s ruling. The social worker informed
the court that Father expressed his desire to participate in “every service
available to him in order to have the opportunity to reunify with E.S.”
Father remained in communication with the Agency and consistently visited
E.S. And following a January 2023 drug test in which Father tested positive
for methamphetamine, his drug tests returned negative results for
substances aside from marijuana.
Contrary to E.S.’s argument on appeal, the juvenile court’s comments
indicating it considered that Mother was offered reunification services
despite her own lengthy history with child welfare services, do not compel a
contrary conclusion or suggest the court applied an incorrect legal standard.
In rendering its decision, the court expressly relied on evidence of Father’s
participation in his domestic violence and “sex offender group” classes, as
well as his testimony professing his commitment to engaging in services.
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Even assuming the court erroneously considered the extent of the
reunification services offered to Mother, we uphold judicial orders “ ‘if they
are correct for any reason, “regardless of the correctness of the grounds upon
which the court reached its conclusion.” [Citation.] “It is judicial action and
not judicial reasoning which is the subject of review . . . .” ’ ” (In re Jonathan
B. (1992) 5 Cal.App.4th 873, 876.) We do not perceive the court’s order for
reunification services to be improper judicial action because it was supported
by the substantial evidence previously discussed.
Further, even assuming the bypass provisions in section 361.5,
subdivision (b), were applicable, this subdivision “does not require the
juvenile court to deny reunification services, but merely gives it the authority
to do so. [Citation.] If the court finds by clear and convincing evidence that
reunification is in the best interest of the child, it retains authority to order a
further round of reunification services. [Citation]” (In re Gabriel K. (2012)
203 Cal.App.4th 188, 197.) “ ‘ “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.” ’ [Citation.]” (In re A.E. (2019) 38 Cal.App.5th 1124, 1140–1141.)
“The best interests determination encompasses a consideration of the
parent’s current efforts, fitness and history; the seriousness of the problem
that led to the dependency; the strength of the parent-child and caretaker-
child bonds; and the child’s need for stability and continuity. [Citations.]’ ”
(In re A.G. (2012) 207 Cal.App.4th 276, 281.) As we discussed, the juvenile
court considered Father’s current efforts to treat the issues leading to the
dependency of his other children. And unlike the prior dependency cases
involving E.S.’s siblings, Father’s visitation with E.S. was reportedly positive
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and consistent. On this record, we cannot conclude that reunification
services were contrary to E.S.’s best interests such that the juvenile court’s
decision constituted an abuse of discretion.
DISPOSITION
The order is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
KELETY, J.
RUBIN, J.
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