D.F. v. Super. Ct.

Filed 11/24/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
D.F.,
Petitioner,
v.
THE SUPERIOR COURT OF A146191
HUMBOLDT COUNTY,
(Humboldt County
Respondent; Super. Ct. No. JV150104)
HUMBOLDT COUNTY DEPARTMENT
OF HEALTH & HUMAN SERVICES et
al.,
Real Parties in Interest.
INTRODUCTION
The juvenile court denied reunification services to D.F., the mother of A.M.
(Mother), under Welfare and Institutions Code section 361.5, subdivision (b)(11),
because her parental rights to another child had been permanently severed.1 Mother
challenges the order bypassing reunification services and setting a permanency planning
hearing, asserting subdivision (b)(11) does not apply because her parental rights were
severed in another state. Mother relies on our decision in Melissa R. v. Superior Court
(2012) 207 Cal. App.4th 816 [144 Cal.Rtpr.3d 48] (Melissa R.), in which we held
section 361.5, subdivision (b)(10), authorizing the bypass of reunification services where
services have been terminated due to failure to reunify as to a sibling, applies by its plain
terms only to a termination of services and removal of a sibling in a California
1
All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
1
dependency proceeding. As we explain, the plain language of subdivision (b)(11), unlike
that of subdivision (b)(10), contains no such limitation. We therefore deny mother’s writ
petition challenging the denial of reunification services and setting a section 366.26
hearing.
BACKGROUND
A.M. is a medically fragile infant born in March 2015, approximately three
months premature. At birth, he weighed one pound 13 ounces, and tested positive, as did
Mother, for marijuana. He spent the first three months of his life in a pediatric intensive
care unit.
The Humboldt County Department of Health and Human Services (Department)
filed a section 300 petition alleging serious physical harm2 and failure to protect. The
juvenile court detained A.M. Although the Department provided Mother with housing
one block from the hospital, she rarely visited the struggling infant, despite telephone
calls from nurses and the social worker encouraging her to do so.
In a report prepared for the jurisdictional hearing, the social worker reported
Mother had lost custody of two other children. One child was living with his biological
father. The other had been adopted after Mother’s parental rights were terminated in
Texas.
The Texas social worker provided additional information. Mother had been
homeless at the time her two other children were detained in that state, and she had sent
them to live with her wife’s mother in Texas, while she and her wife remained in San
Diego. The wife’s mother, however, “dropped the children off at a ‘Children’s Crisis
Center’ because she couldn’t meet their needs.” The children were then placed in
protective custody, and the Texas social worker attempted to contact Mother and her wife
for three months, without success. Mother and her wife later arrived in Texas, where
Mother was referred for drug testing, counseling and family therapy, and was diagnosed
with depression. Mother and her wife then “disappeared for four months” and neither
2
The serious physical harm allegation was subsequently stricken.
2
visited her children nor remained in touch with the social worker. The Texas court
terminated her parental rights as to the younger child, freeing her for adoption by a non-
family member.
In the instant dependency proceeding, Mother signed a “Waiver of Rights” and
agreed to “submit the petition on the basis of the social worker’s . . . report.” The
juvenile court sustained the petition as amended to count b-3, which alleged in part: “The
baby has remained in the intensive care unit at the hospital for over two and a half
months. The mother has failed to regularly visit with the child, bond with the child,
receive instruction on how to care for the child’s needs, and authorize medical treatment
for the medically fragile new born though the mother was staying only 1 block away
from the hospital. Such mental illness, developmental disability or substance abuse
places the child at risk of serious injury or illness.” The court further ordered, “When
[A.M.] is discharged from the NICU in Redding he will be transferred via ‘special
medical transport.’ The closest foster home for the child that can meet his medical needs
is in the Bay Area. The department will have him transferred to UCSF then placed in the
[B]ay [A]rea.”
Prior to the disposition hearing, the Department requested that the court bypass
reunification services to Mother under both subdivisions (b)(10) and (11) of section
361.5. Following a hearing, the court denied reunification services only under
section 361.5, subdivision (b)(11), based on the termination of her parental rights to her
child in Texas. The court found “The Texas Court ordered parental rights permanently
severed, and the currently detained child was removed from the same parent, who in
either case, has not subsequently made reasonable efforts to treat the problems that lead
to removal of the sibling or half sibling.”
DISCUSSION
“Ordinarily, when a child is removed from parental custody, the juvenile court
must order services to facilitate the reunification of the family. (§ 361.5, subd. (a).)
‘ “Nevertheless, as evidenced by section 361.5, subdivision (b), the Legislature
recognizes that it may be fruitless to provide reunification services under certain
3
circumstances. [Citation.] 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 would be an unwise use of governmental resources.” ’
[Citation.] An order denying reunification services is reviewed for substantial evidence.
[Citation.]” (R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 914 [136 Cal.Rtpr.3d
309].)
Section 361.5, subdivision (b)(11) provides: “Reunification services need not be
provided to a parent or guardian described in this subdivision when the court finds, by
clear and convincing evidence, any of the following: [¶] . . . [¶] (11) That the parental
rights of a parent over any sibling or half sibling of the child had been permanently
severed, and this 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 the parent.”
Relying on Melissa R., Mother asserts subdivision (b)(11) permits the bypass of
reunification services only when parental rights to a sibling or half sibling have been
severed by a California court. In Melissa R., reunification services for a half-sibling had
been terminated in Wisconsin and the child had been placed in the care of his maternal
grandmother. (Id. at p. 820.) The California juvenile court denied reunification services
under subdivision (b)(10), which provides in relevant part that reunification services may
be bypassed where a court has “ordered termination of reunification services for any
siblings or half siblings of the child because the parent or guardian failed to reunify with
the sibling or half sibling after the sibling or half sibling had been removed from that
parent or guardian pursuant to Section 361.” (§ 361.5, subd. (b)(10), italics added;
Melissa R., supra, 207 Cal.App.4th at p. 819.)
On appeal, this court held that because subdivision (b)(10) expressly requires
removal of the sibling or half-sibling “pursuant to Section 361” of the California Welfare
and Institutions Code, the subdivision on its face does not apply where a sibling or half-
sibling has been removed in another state. (Melissa R., supra, 207 Cal.App.4th at
4
p. 822.) We observed that the Legislature knows how “to write in language addressing
out-of-state removal of a dependent sibling . . . but chose not to do so” in
subdivision (b)(10). (Melissa R., at p. 823.) Moreover, “there are sound reasons why the
Legislature might have chosen to limit the application of section 361.5,
subdivision (b)(10) to orders terminating reunification made under the laws and
procedures of this state”—namely, that California law requires such orders to be made on
“clear and convincing” evidence and guarantees a parent the right to a hearing and right
to contest a termination order. (Ibid.)
Subdivision (b)(11), in contrast, contains no language specifying the severance of
parental rights to a sibling or half sibling must be pursuant to a Welfare and Institutions
Code provision. Nor does the contextual structure of the subdivision suggest a severance
of parental rights must occur in California. “In the construction of a statute or
instrument, the office of the Judge is simply to ascertain and declare what is in terms or in
substance contained therein, not to insert what has been omitted, or to omit what has been
inserted.” (Code Civ. Proc., § 1858.) “ ‘ “[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.” ’ ” (Melissa R., supra, 207 Cal.App.4th at p. 822.) On its face, the
language of subdivision (b)(11) is unambiguous—there is no limitation of its application
to cases, like this one, where parental rights to a sibling or half sibling have been severed
in a jurisdiction other than California.
Nevertheless, Mother contends Melissa R. “clearly conclude[d]” out-of-state
statute[s] and rulings may only be considered if the Legislature specifically permits it in
the affirmative.” Because subdivision (b)(11) “omits any mention of the applicability of
out-of-state statutes,” Mother maintains the holding of Melissa R. as to subdivision
(b)(10) is also controlling as to subdivision (b)(11). However, we did not reach any such
conclusion in Melissa R. Rather, we focused on the specific language of subdivision
(b)(10) and concluded its express reference to section 361 could mean only one thing—
the termination of reunification services for a sibling or half sibling and removal of that
child had to have occurred in a dependency proceeding conducted under California law.
5
But we cannot draw any such conclusion as to subdivision (b)(11). Indeed, had
the Legislature intended to limit subdivision (b)(11) to only those cases where parental
rights to a sibling or half sibling have been severed in California, it could easily have
done so, as the limiting language of subdivision (b)(10) makes clear. Instead, the
Legislature chose not to include such limiting language. The omission is significant,
because it demonstrates, in a variation of the concept expressio unius est exclusio
alterius, that the Legislature made a conscious decision to limit bypass of reunification
services based on termination of reunification services to a sibling or half sibling to
instances in which the sibling was removed under California law, but to allow bypass of
services based on termination of parental rights to a sibling or half sibling without regard
to the jurisdiction in which that termination occurred.
While Mother observes “California’s standard of proof for removal [following
failure to reunify and termination of services] is higher than that of Texas,” this fact,
rather than aiding Mother, suggests why the Legislature may have chosen to treat failure
to reunify and termination of reunification services under subdivision (b)(10), differently
from the severance of parental rights under subdivision (b)(11). As the Department
points out, the burden of proof in determining whether parental rights should be severed
is clear and convincing evidence in all states. “Before a State may sever completely and
irrevocably the rights of parents in their natural child, due process requires that the State
support its allegations by at least clear and convincing evidence.” (Santosky v. Kramer
(1982) 455 U.S. 745, 747–748 [102 S.Ct. 1388, 71 L.Ed.2d 599].) The California
Legislature could well have determined when it enacted the bypass provisions now set
forth in subdivisions (b)(10) and (11) more than a decade later (Stats. 1996, ch. 1083,
§ 2.7), that this federal constitutional mandate provides adequate substantive and
procedural assurances when it comes to the severance of parental rights, whether in
California or another jurisdiction.
Mother lastly claims the juvenile court’s finding as to the second requirement of
subdivision (b)(11)—that after severance of her parental rights to a sibling or half sibling
6
she has “not subsequently made a reasonable effort to treat the problems that led to the
removal of the sibling or half-sibling”—is not supported by substantial evidence.
“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.’ ” ’ [Citation.] [¶] We do not read the ‘reasonable effort’ language in the bypass
provisions to mean that any effort by a parent, even if clearly genuine, to address the
problems leading to removal will constitute a reasonable effort and as such render these
provisions inapplicable. It is certainly appropriate for the juvenile court to 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, when evaluating the effort for reasonableness.
And while the degree of progress is not the focus of the inquiry, a parent’s progress, or
lack of progress, both in the short and long term, may be considered to the extent it bears
on the reasonableness of the effort made.” (R.T. v. Superior Court, supra,
202 Cal.App.4th at p. 914.)
Mother did not present any evidence of efforts to address the problems that lead to
the severance of her parental rights, which was predicated on a sustained allegation of
“Refusal to Assume Parental Responsibility.” Although in her briefing on appeal here
Mother attempts to minimize what transpired in Texas as “an appropriate plan for the
care of the children by sending the siblings to Texas” that went awry, that was hardly the
case. The grandparents to whom she shuttled the children were unable to care for them
due to their limited financial means, health issues, and one-bedroom residence. And
thereafter, Mother failed to contact Texas authorities about the children when asked to do
so, made no arrangements to pick up the children despite being told by Texas authorities
of the need to do so, refused to provide contact information for the children’s fathers and
maternal grandmother, and failed to provide necessities for the children, including
medication. This was not an appropriate care plan that simply did work out—this was
abject neglect and abandonment.
7
Mother’s conduct here with regard to A.M. was more of the same. Even before
the child was born, Mother failed to procure regular prenatal care and continued to use
marijuana while pregnant, leading to the newborn’s positive test for THC. The
Department then provided Mother with housing one block from the hospital where A.M.
was in the intensive care unit, but she shouldered no parental responsibility for the infant.
She rarely visited him during his three-month hospitalization, despite repeated entreaties
to do so by his nurses and the social worker. In short, whether Mother’s refusal to
assume parental responsibilities was due to mental health issues or substance abuse
issues, she made no effort to address these fundamental problems. The social worker did
report that Mother was working at a supermarket and residing with her employer.
Although this step was laudable, lack of employment was not the reason for the
termination her parental rights. Nor was there any evidence this housing was suitable for
her medically needy infant. In sum, ample evidence supports the juvenile court’s
findings that Mother had not made a reasonable effort to treat the problems that led to the
severance of her parental rights.
DISPOSITION
Mother’s petition for an extraordinary writ is denied. The stay of the order
authorizing the minor to be placed out of state is vacated. This opinion is final in this
court on filing. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)
8
_________________________
Banke, J.
We concur:
_________________________
Humes, P. J.
_________________________
Margulies, J.
A146191, D.F. v. Superior Court of Humboldt County
9
Trial Judge: The Honorable Christopher G. Wilson
Trial Court: Humboldt County Superior Court
Javier Barraza for Petitioner.
Jeffrey S. Blanck, County Counsel and Anne H. Nguyen, Deputy County Counsel for
Real Parties in Interest, Humboldt County Department of Health and Human Services et
al.
Marie Ferreboeuf for Real Party in Interest, the Minor.
10