Audra I. v. Superior Court

Filed 5/31/06 Audra I. v. Superior Court CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In March 2006,^[1] the juvenile court denied reunification services for petitioner Audra I. and set a July 6 date for a permanency planning hearing in a dependency matter involving minor Tyler D. (See Welf. & Inst. Code,^[2] § 366.26.) Audra petitions for review of these orders,^[3] asking us to issue a writ of mandate directing the juvenile court to vacate the orders denying her reunification services and setting a permanency planning hearing. She asks us to order the juvenile court to require that reunification services be provided to her and seeks a stay of the permanency planning hearing. She contends that the finding of detriment was not supported by substantial evidence; that the burden of proof was improperly shifted to her; and that the court erred when finding that she would be incarcerated until March 2007. Real party in interest Sonoma County Human Services Department opposes the petition. We deny the petition on the merits.

I. FACTS

Tyler D. was born in January 1998 to appellant Audra I. and Christopher D. Audra has an extensive criminal history. At first, the minor lived with her mother, but Tyler has lived with one of two paternal aunts since June 27, 2003. In June 2003, Audra was jailed for drug charges. A June 2003 family court order advised that Tyler be placed with relatives, concluding that placing her with Audra would be detrimental to the child. It ordered that Tyler not be placed in Audra's custody until there was a final disposition of the mother's criminal charges, she was no longer subject to incarceration, and there was no evidence that she was using drugs.

In September 2003, Audra was convicted of multiple counts of conspiracy and credit card fraud. She was sentenced to six months in jail and placed on probation for three years. In October 2003, Audra was found in possession of a controlled substance while under the influence of a controlled substance. She was convicted of this offense and sentenced to a drug diversion program. In February 2004, her grant of probation was revoked and she was sentenced to two years in state prison. She was released and paroled from prison in February 2005. During her periods of incarceration, Audra wrote letters to keep in contact with Tyler.

In July 2005, Tyler went to live with her father Christopher, his girlfriend and her daughter. Christopher had his own substance abuse and domestic violence problems, including a history of incarceration. When Tyler was living with her father, Christopher and his girlfriend fought constantly. During this time, Tyler visited Audra about once a month.

Four months later, on November 15, 2005, Tyler was removed from Christopher's home and placed in a shelter. On November 17, 2005, real party in interest Sonoma County Human Services Department petitioned the juvenile court, urging that Tyler be declared a dependent child. (See § 300, subds. (b), (g).) Christopher was listed as her presumed father.^[4] The petition alleged that Christopher and Audra had failed to protect their child, because their substance abuse rendered them incapable of doing so. Christopher also had a history of domestic violence, including some incidents that occurred in Tyler's presence. At the time that the petition was filed, he had just been incarcerated after stalking and assaulting his former girlfriend while Tyler was present. On November 18, 2005, the juvenile court approved Tyler's detention. Audra was in court at this hearing and requested custody of her daughter. Counsel was appointed to represent her.

Tyler spent Thanksgiving at the home of her paternal aunt. Audra visited Tyler there over the holiday weekend. This visit was not authorized by the department, but it went well. However, Audra made inappropriate promises to Tyler about visitation and custody issues. On November 26, 2005, Audra was arrested for conspiracy and grand theft. The offense was committed in the presence of a small child who accompanied her and her cohort. Audra was jailed and faced parole violation proceedings, as well as prosecution for the new charges. She did not contact the social worker after her arrest. On November 28, 2005, Tyler was formally placed with her paternal aunt.

On December 20, 2005, Audra was sentenced to 16 months in state prison. The department recommended that Audra be denied reunification services. (See § 361.5, subd. (e).) The department concluded that as Audra faced the new charges and a parole violation, she was unlikely to be available to participate in reunification services. By February, Audra was in state prison. In March, she waived her right to attend a dependency hearing, authorizing her attorney to represent her interests.

On March 14, Audra's attorney contested the department's recommendation that no reunification services be offered to her, claiming that she could be released from prison as early as this August. He argued that reunification services would not be detrimental to Tyler. He urged the juvenile court to consider Tyler's age, the bonding between Tyler and Audra, the length of Audra's sentence, the nature of the underlying crime, and the degree of detriment if reunification services were not offered. He reasoned that Tyler and Audra were bonded, citing Tyler's earlier expressed wish to live with Audra,^[5] the monthly visits she had with her mother while living with Christopher, and the letters Audra sent from jail. The mother's attorney also noted that Audra could be released from prison in a few months.

For many reasons, Audra's counsel argued that reunification services would not be detrimental to Tyler. He did agree that it would be appropriate not to have visitation while Audra was still in prison, agreeing not to contest a finding that such visitation would be detrimental to Tyler.

The parties stipulated that Audra could be released as early as August 4, and as late as March 11, 2007. It was also stipulated that Audra's actual release date would be partly based on her conduct during incarceration. The department argued that the juvenile court should be guided by the maximum release date, not the minimum one--reasoning that it was speculative to consider that Audra's prison sentence might be reduced for good behavior. Audra's attorney noted records indicating that she had been granted early release before, thus suggesting that early release on the current term was also likely.

The department's counsel and the minor's attorney argued that the fact that Audra was arrested so soon after Tyler was detained was evidence that she was not serious about reunifying with her daughter. The minor's counsel noted that Tyler had not lived with her mother for almost three years and there was only a slight probability of reunification. The department also noted that Tyler had not lived with her mother for some time when arguing that the juvenile court had no evidence of a strong bond between Tyler and Audra. The department also reported that Audra's parental rights might not be terminated, as the permanent plan might be guardianship.

Once the parties agreed that Tyler would not have to visit Audra in prison, the department was uncertain what reunification services it could offer Audra that she could not get on her own in prison. The juvenile court found this to be an inappropriate factor for its consideration. It expressed its intention to rely on the statutory factors to decide whether or not to offer reunification services to Audra. (See § 361.5, subd. (e).)

On March 15, the juvenile court--noting that no one had contested the allegations of the petition--found them to be true. Tyler was declared to be a dependent of the juvenile court, also without objection. It concluded that Audra had made no progress toward alleviating or mitigating the causes necessitating Tyler's removal. The juvenile court also concluded that the bond between Audra and eight-year-old Tyler was uncertain, but had not been shown to be strong. The minor was doing well in her aunt's home.

The juvenile court found that it was not required to make a specific finding about the length of Audra's sentence in order to apply the statutory provision negating the need to provide reunification services. It concluded that Audra had been sentenced to 16 months in prison--a term that began at her November 2005 arrest and would end on or about March 11, 2007. The court found that Audra could not be able to reunify with Tyler within the statutory period. It found clear and convincing evidence that visitation with Audra in prison would be detrimental to Tyler and noted the parties' stipulation that there would be no visitation at that time. As there would be no visitation, the juvenile court found that not offering services would not change Tyler's contact with Audra. It found only a minimal detriment to Tyler if reunification services were not offered.

The juvenile court found by clear and convincing evidence that Audra was incarcerated and that providing reunification services to her would be detrimental to Tyler. (See § 361.5, subd. (e).) It set a July 6 date for a permanency planning hearing. (See § 366.26.)

Audra's petition challenging the juvenile court's March 15 order was filed on April 27. She seeks a writ compelling the juvenile court to vacate the order denying her reunification services and setting a permanency planning hearing date. She also asks us to stay the July 6 permanency planning hearing. An order to show cause issued on April 27. The department opposes the petition. Neither party seeks oral argument. The juvenile court set July 6 as the date for the permanency planning hearing.

II. DETRIMENT

A. Legal Standard

First, Audra challenges the juvenile court's finding that providing reunification services would be detrimental to Tyler. The juvenile court found by clear and convincing evidence that Audra was incarcerated and that providing reunification services would be detrimental to the minor. (See § 361.5, subd. (e).)

This finding of detriment was essential to the juvenile court's decision not to offer reunification services to Audra. California law permits a juvenile court judge to deny reunification services to an incarcerated parent only if it finds by clear and convincing evidence that the provision of those services would be detrimental to the child. (§ 361.5, subd. (e)(1).) When considering detriment, the juvenile court must consider the age of the child, the degree of parent-child bonding, the length of the sentence, the nature of the crime, the degree of detriment to the child if services are not offered, and any other appropriate factors. (Ibid.) These reunification services are subject to the time limits of the reunification period.^[6] (§ 361.5, subds. (a), (e)(1).) Reunification services may include telephone contact, transportation, visitation^[7] and services to family members providing care for the child. (§ 361.5, subd. (e)(1)(A)-(D).) An incarcerated parent may be required to attend counseling, parenting classes or vocational training programs as part of the reunification plan if these services are available in prison. (§ 361.5, subd. (e).)

When faced with a challenge to the sufficiency of evidence of a juvenile court finding, our standard of review is well settled. We must view the entire record in the light most favorable to the finding, indulging in all legitimate and reasonable inferences to uphold it. If substantial evidence supports the finding, we cannot disturb the juvenile court's judgment. (In re Precious J. (1996) 42 Cal.App.4th 1463, 1472; In re Misako R. (1991) 2 Cal.App.4th 538, 545.) When two or more reasonable inferences can be drawn from the facts, we have no authority to substitute our deduction for that made by the juvenile court. (In re Misako R., supra, 2 Cal.App.4th at p. 545; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.) We have no power to reweigh the evidence--only to determine if there is sufficient evidence to support the juvenile court's finding. (In re Jacqueline G. (1985) 165 Cal.App.3d 582, 585; see In re Heather P. (1988) 203 Cal.App.3d 1214, 1226-1227, disapproved on another point in In re Richard S. (1991) 54 Cal.3d 857, 866 fn. 5.)

B. Bonding

The juvenile court found that the bond between Tyler and Audra was uncertain, but had not been shown to be strong. In her petition, Audra first challenges this juvenile court's finding, arguing that the evidence in the record that might support this finding was speculative. She is particularly critical of any reliance on her separation from Tyler since June 2003 as poor evidence of a weak bond.

In our case, there is little direct evidence of the bond between Audra and Tyler. The child has not lived with Audra since she was five and a half. Almost three years have passed since that time. Despite the lack of direct evidence, there is evidence from which we may infer the degree of bond between mother and child. Inferences may constitute substantial evidence if they are a product of reason and logic and if those inferences rest on the evidence. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) In our case, it was reasonable and logical for the juvenile court to infer that this period of separation could weaken a bond between a parent and child.

Tyler now lives with her aunt--someone she had lived with for a significant portion of her life before the November 2005 placement--and she seems to be thriving there. At the beginning of the three-year period, Tyler's placement with Audra was found to be detrimental to the child. There was no evidence that the mother's drug abuse and periods of custody had lessened during this three-year period. The juvenile court judge found that Audra had made no progress in dealing with these issues, which led to Tyler's removal from her parents. The parties agreed that it would be detrimental for Tyler to visit Audra while the mother was in prison, making it likely that what bond they had would only grow weaker during the mother's period of incarceration.

Audra cites Tyler's expressed desire to live with her as positive evidence of a strong bond between the two of them. The juvenile court did hear evidence that Tyler had expressed an interest in living with Audra after she was removed from Christopher's home and before she reentered her aunt's home in late November 2005. However, the minor's counsel discounted this evidence, which was made at a vulnerable time. Tyler's attorney argued that the minor was then thriving with her aunt and should be allowed to remain there. It appears that the juvenile court also discounted young Tyler's expressed desire to live with Audra--an interest that was mooted when the mother was almost immediately jailed on new criminal charges. In a dependency case, the juvenile court may make credibility determinations that we may not disturb on appeal. (See In re Heather P., supra, 203 Cal.App.3d at p. 1226.)

Audra cites Tyler's statement of interest as if it were the only evidence relevant to the issue of bonding. It may be the only direct evidence of bonding in the record, but there is ample evidence from which the juvenile court could reasonably and logically infer that Tyler's connection with Audra had weakened during the three years that she lived with other relatives while her mother was incarcerated or otherwise unable to provide for her. Inferences may properly constitute substantial evidence if they are a product of reason and logic and if those inferences rest on the evidence. However, speculation or conjecture alone cannot support an inference such that it will constitute substantial evidence. (In re Savannah M., supra, 131 Cal.App.4th at pp. 1393-1394; see Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) We have considered the evidence that Audra criticizes and we find it a sufficient basis for a proper, nonspeculative inference that supports the juvenile court's finding of an uncertain, apparently weak bond.

Audra also appears to believe that the degree of bond with her child would be determinative of detriment. However, the bond is only one factor that the juvenile court considered on this issue. It also weighed Tyler's young age, the difficulty of visitation during a period of incarceration, the 16-month length of Audra's sentence, the nature of the crime for which Audra was convicted--not violent but committed in the presence of a child, suggesting a lack of parental judgment--and the minimal degree of detriment to Tyler if reunification services were not provided to Audra. (§ 361.5, subd. (e)(1).)

Assuming arguendo that we believed that the bond between Audra and Tyler might have been somewhat stronger than the juvenile court concluded, other factors could outweigh a stronger bond sufficient to support a finding of detriment. Considering all these circumstances, we find that substantial evidence supports the juvenile court's finding of detriment to Tyler if reunification services were provided to Audra.

C. Burden of Proof of Detriment

Audra also contends that the juvenile court improperly shifted the burden of proof to her when it concluded that there was no evidence of a strong bond between Tyler and herself. She notes that the county had the burden of proof to show clear and convincing evidence of a lack of a bond. (See § 361.5, subd. (e); see also In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1067 [risk of detriment if child returned to parents].)

We have reviewed the record and are satisfied that the juvenile court's phrasing of its bonding finding did not constitute a shifting of the burden of proof on this issue from the department to the mother. The department offered evidence from which the juvenile court could logically and reasonably infer that the bond between Audra and Tyler was not strong. (See pt. II.B., ante.) The juvenile court's finding reflects an understanding and application of the standard placing the burden of proof on the department--as the petitioner--to show clear and convincing evidence of detriment.^[8] (See § 361.5, subd. (e).) It does not detract from the appropriate application of the department's burden of proof for the juvenile court to note--as we do on appeal--that there was a lack of evidence of a strong bond. Such evidence could have been provided either by Audra or by the department in its report if any evidence suggested a strong link between Tyler and her mother. There was little evidence of a strong bond in this matter, regardless of who might have provided that evidence to the juvenile court and to us.

We are satisfied that the juvenile court's wording did not signal a misunderstanding of the department's burden of proof of detriment by clear and convincing evidence or an improperly shifting of that burden to the mother. As there is substantial evidence to support the juvenile court's finding that the provision of reunification services would be detrimental to Tyler, this finding supports the order denying Audra any reunification services.

III. PERIOD OF INCARCERATION

Audra also asserts that the juvenile court made an error in calculating the date of her release from prison when it determined that reunification services should not been provided to her because she would not have sufficient time to benefit from them during the reunification period. The juvenile court found that she would be incarcerated until March 2007. (See § 361.5, subd. (e).) On review, Audra urges us to find that as she might be released as early as August 6 of this year, the juvenile court was required to consider that date instead of her maximum release date of March 2007. Audra reasons that if she is released on August 6, she will have sufficient time to reunify with Tyler before the 12-month statutory time period for reunification ends. The department opposes this aspect of her petition, arguing that for the juvenile court to have relied on the early release date would have been speculative.

Preliminarily, we must determine when the reunification period started in order to assess when it might end. Tyler was seven when she was first removed from Christopher's care. The reunification period for a child over age three at the time of removal may not exceed 12 months from the date that the child entered foster care. (See § 361.5, subd. (a)(1).) The juvenile court stated that Tyler entered foster care on January 14 of this year such that Audra was presumptively entitled to reunification services until January 14, 2007. However, the record does not support the juvenile court's underlying finding of the date on which the reunification period began to run. Instead, the record demonstrates that at the age of seven, Tyler was removed from her father's custody and entered foster care on November 15, 2005. Under these circumstances, the typical 12-month reunification period would run until November 15 of this year. For purposes of the determination of the issues raised in this petition, we find that Audra would not be entitled to reunification services after November 15 of this year.

Audra cites no authority in support of her assertion that the juvenile court is required to consider the minimum release date when determining whether a parent would have an opportunity to reunify before the expiration of the reunification period. She offered no concrete evidence that her current term of incarceration was likely to result in early release--nor evidence of her progress or conduct in prison, no evidence of any steps she was taking during this time in prison to address the issues that have led to her difficulties in the juvenile dependency and criminal courts. The statute requires the juvenile court to consider â€