T.A. v. Superior Court CA5

Filed 5/24/21 T.A. v. Superior Court CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
T.A.,
F082362
Petitioner,
(Super. Ct. No. JD141063-00)
v.
THE SUPERIOR COURT OF KERN COUNTY, OPINION
Respondent;
KERN COUNTY DEPARTMENT OF HUMAN
SERVICES,
Real Party in Interest.
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Marcos R.
Camacho, Judge.
Steven L. Bynum for Petitioner.
No appearance for Respondent.
Margo A. Raison, County Counsel, and Jennifer E. Feige, Deputy County
Counsel, for Real Party in Interest.
* Before Detjen, Acting P.J., Franson, J. and DeSantos, J.
-ooOoo-
Petitioner, T.A. (mother), seeks an extraordinary writ from the juvenile court’s
orders denying her reunification services under Welfare and Institutions Code
section 361.5, subdivision (b)(10) and (11)1 and setting a section 366.26 hearing as to her
now 11-month-old daughter, S.A. Subdivision (b)(10) and (11) of section 361.5 apply to
a parent whose reunification services and parental rights to a sibling were terminated and
the parent failed to make subsequent reasonable efforts to treat the problem requiring the
sibling’s removal. Mother contends the juvenile court erred in denying her reunification
services because substantial evidence supported a finding that she made subsequent
reasonable efforts. We deny the petition.
PROCEDURAL AND FACTUAL SUMMARY
At the time these dependency proceedings were initiated in June 2020, mother had
nine minor children,2 including S.A. (the baby), none of whom were in her custody.
David is the father of her three youngest children.
Dependency proceedings were initiated when the Kern County Department of
Human Services (department) was notified mother gave birth to the baby. Mother tested
negative for drugs and was bonding with the baby. However, she had recently failed to
reunify with four of her other children and a section 366.26 hearing was then scheduled
for August 2020. The precipitating event occurred in April 2018 when mother assaulted
David in the shower. They physically fought and fell on the bed where one of the
children was laying. The child received a large scratch on her inner thigh and David was
arrested. There were domestic violence incidents prior to that in which David broke a
front window of the residence and kicked in the front door. On one occasion, mother
struck him in the head with a wrench. Mother and David were ordered to participate in
1 Statutory references are to the Welfare and Institutions Code.
2 She also had an adult daughter and a child who was deceased.
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domestic violence counseling as a perpetrator, substance abuse counseling,
parenting/child neglect counseling and random drug testing. The court added mental
health counseling and conjoint counseling at the six-month review hearing. Family
reunification services were terminated at the 18-month review hearing in February 2020.
A social worker placed a protective hold on the baby at the hospital. Mother
reported she and David separated in December 2019 when he left the home and ended
their relationship in February 2020 after their reunification services were terminated. She
completed the counseling required by her services plan, including domestic violence
counseling, and participated in random drug testing. She filed a modification petition
(§ 388) seeking return of the siblings to her custody. The petition was denied because
she was still in a relationship with David. He was seen at her home fixing the plumbing
and was also on the lease for the house. She said their last domestic violence incident
was two years before. The last time she saw David was when he took her to the hospital
to deliver the baby. Their goal was to live together and raise the baby. Her drug of
choice was methamphetamine, but she had not used the drug since November 5, 2018,
and agreed to drug test. She reported no other drug use. She was seeing a therapist
monthly for codependency and grievance counseling.
After the baby’s removal, mother promptly entered residential substance abuse
treatment, enrolled in parenting and domestic violence classes, and planned to resume
mental health therapy. She was also willing to drug test. The baby was placed in foster
care.
The juvenile court ordered the baby detained and set the matter for a hearing on
jurisdiction and disposition, which was continued until October 29, 2020. Meanwhile, on
October 15, 2020, the juvenile court terminated mother’s parental rights to the baby’s
half-sibling, T.L.
On October 29, 2020, the juvenile court deemed David the baby’s presumed
father, sustained allegations she was a minor described under section 300,
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subdivisions (b) (failure to protect) and (j) (abuse of sibling) and continued the matter for
a dispositional hearing in January 2021. The hearing was continued and conducted as a
contested dispositional hearing on February 5, 2021.
Mother and David maintained contact with the department and regularly visited
the baby. Mother completed a two-month residential substance abuse treatment program
in August 2020 and transitioned immediately into a sober-living home where she
remained and was employed as the live-in house manager. She completed a parenting
class in September 2020 and had one class left to complete a 26-week domestic violence
class. She submitted to eight voluntary drug tests which yielded negative results except
for one positive result for ethanol and one that indicated diluting/flushing. David had not
enrolled in any services. He submitted to one drug test which yielded a positive result for
methamphetamine.
Despite mother’s participation in reunification services, the department
recommended the juvenile court deny her reunification services under section 361.5,
subdivision (b)(10) and (11) because her reunification services and parental rights in the
case of the siblings were terminated and she failed to make reasonable efforts to treat the
domestic violence in her relationship with David. She claimed she and David were no
longer in a relationship, but he was found in her home and they planned to raise the baby
together. She also commented in September 2020 on a social media post about a
vibrating condom that she was going to buy to use with David. At a team decision
meeting in December 2020, mother was asked about the fact that her adult daughter and
David lived in the same house. She said she wanted her adult daughter “ ‘out of that
home’ ” and said there was an eviction order because the rent was unpaid. She was also
asked about a rumor David bought her a car. She denied he bought her a car, stating she
rode the bus.
The department recommended the juvenile court deny David reunification services
under section 361.5, subdivision (b)(10), (11) and (b)(13) and set a section 366.26
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hearing to select adoption for the baby with her foster parents. The foster parents were
committed to adopting the baby and no family members had applied for placement.
Mother testified at the contested dispositional hearing that she filed for a
restraining order earlier in the week. She visited the baby twice a week for two hours and
visits went well. When asked what was motivating her this time, mother acknowledged
she previously completed her case plan but did not have the strength to separate from
David. However, she had gained a new sense of independence and did not need to rely
on him anymore. She was not using drugs when she entered substance abuse treatment,
having been clean and sober for two years. If required to complete a 52-week domestic
violence class, she would comply.
Mother claimed she severed her relationship with David two months before the
baby was born and her only contact with him was at the court hearings. She denied
having any contact with David on social media. She acknowledged drinking a glass of
wine while dining out with her daughter, which she believed produced the positive result
for ethanol the following day. She did not believe it jeopardized her sobriety since she
did not drink alcohol on a regular basis.
Tamisha Harris, operator of a nonprofit mother-child retreat, assisted mother with
preparing for visitation, obtaining employment and housing and filing a restraining order.
Mother was very receptive to her suggestions and regularly asked her what more she
could do. She believed mother made a tremendous effort to reunify with the baby and
was in favor of mother reunifying with her.
The juvenile court found mother had not made reasonable efforts to treat her
domestic violence problem with David. Specifically, the court cited the fact that mother
waited until just before the hearing to pursue the restraining order even though she knew
domestic violence with David was one of the major concerns the department had about
offering her reunification services. The court removed the baby from parental custody,
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denied the parents reunification services as recommended and set a section 366.26
hearing.
DISCUSSION
When the juvenile court removes a child from parental custody at the dispositional
hearing, it must provide reunification services to the child and the parents. (§ 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.) However, subdivision (b) of section 361.5 exempts from
reunification services “ ‘ “those parents who are unlikely to benefit” ’ [citation] 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.) The 17 different paragraphs set
forth in subdivision (b) of section 361.5— which authorize denial of reunification
services under various specific circumstances—are sometimes referred to as “ ‘bypass’ ”
provisions. (Melissa R. v. Superior Court (2012) 207 Cal.App.4th 816, 821.)
Once it has been determined one of the bypass provisions 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.) These exceptions to the general rule reflect a legislative
determination that attempts to facilitate reunification in some cases are futile and do not
serve the child’s interests. (D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 202.)
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.” (In re William B., at p. 1227.)
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On appeal, we review dispositional findings and orders under the substantial
evidence standard of review. (In re A.S. (2011) 202 Cal.App.4th 237, 244.) Substantial
evidence exists when the evidence is “reasonable in nature, credible, and of solid value,”
so that “a reasonable mind would accept [it] as adequate to support [the] conclusion.” (In
re J.K. (2009) 174 Cal.App.4th 1426, 1433.) Under this standard of review, we consider
the record as a whole, in a light most favorable to the juvenile court’s findings and
conclusions, and we defer to the juvenile court on any issues of credibility of the
evidence. (In re Tania S. (1992) 5 Cal.App.4th 728, 733−734.) Moreover, in reviewing
the record for substantial evidence, we bear in mind the juvenile court was required to
make the finding on the heightened clear and convincing evidence standard of proof.
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 995−996.)
As relevant here, section 361.5, subdivision (b)(10) provides that reunification
services need not be provided if, in the case of a sibling, the juvenile court previously
terminated reunification services because the parent failed to reunify with the sibling, and
the court finds that the parent “has not subsequently made a reasonable effort to treat the
problems that led to removal of the sibling.” Under section 361.5, subdivision (b)(11),
reunification services need not be provided if the parental rights of the parent with respect
to a sibling have been terminated, and the court finds that “this parent has not
subsequently made a reasonable effort to treat the problems that led to removal of the
sibling.”
There is no question the bypass provisions apply insofar as mother’s reunification
services and parental rights were terminated because she failed to reunify with the baby’s
siblings. The only question is whether substantial evidence supports the juvenile court’s
finding mother failed to make reasonable efforts to treat the domestic violence that
required the siblings’ removal. We conclude that it does.
The siblings were removed because mother and David engaged in domestic
violence that threatened the children’s safety. Mother was provided a host of services,
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including domestic violence counseling, but failed to reunify. Despite the loss of custody
of her children, she maintained her relationship with David and planned to raise the baby
with him. She had no intention of separating from him even though he was not
participating in services and continued to use methamphetamine. When pressed about
her relationship with David, mother claimed they separated but was inconsistent as to
when the separation occurred. She said they separated in December 2019 when he left
the home but also said they separated in February 2020 when their reunification services
were terminated. However, David drove her to the hospital in June 2020 to deliver the
baby and mother stated at that time they intended to raise the baby together. She also
said she only saw him at the court hearings but then inferred on social media that they
had an ongoing sexual relationship as of September 2020. Perhaps most telling, she
waited until the eve of the dispositional hearing to file a restraining order. Not only did
she maintain the possibility of contact up until then, but she also demonstrated by her
failure to take that definitive step that she was not serious about severing her relationship
and restricting her contact with him.
The crux of mother’s argument is that her many efforts to comply with the
previously ordered reunification plan support a finding she made reasonable efforts
subsequent to the siblings’ removal. Indeed, mother was prompt to reengage in services
after the baby was taken into protective custody and received positive reviews by her care
providers. However, she knowingly ignored the one issue—domestic violence—that she
needed to effectively address in order to reunify with the baby. On that evidence alone,
the juvenile court could properly find she failed to make reasonable efforts as required
under section 361.5, subdivision (b)(10) and (11).
Mother also contends the juvenile court should have found providing her
reunification services served the baby’s best interest. The statute, however, only requires
the court to make a best interest finding if it finds the bypass provision applies and orders
reunification services. Since the court did not order services, it did not and was not
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required to make the finding. Even so, mother bore the burden of proof on the issue and
the only evidence presented was that she and the baby enjoyed positive and appropriate
visitation.
We find no error.
DISPOSITION
The petition for extraordinary writ is denied. This court’s opinion is final
forthwith as to this court pursuant to California Rules of Court, rule 8.490(b)(2)(A).
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