Dan C. v. Superior Court

Filed 3/27/07 Dan C. v. Superior Court CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In October 2006 this court issued its opinion (1) directing the Humboldt County Juvenile Court to vacate its July 2006 order terminating the reunification period and setting a Welfare and Institutions Code^[1]section 366.26 hearing for Michael H. and (2) remanding the matter to the juvenile court for the limited purpose of determining whether conditions for permitting a bypass of reunification services existed at the time of the hearing. (Dan C. v. Superior Court (Oct. 16, 2006, A114694 [nonpub. opn.] (Dan C. I).) Following the hearing on remand, the court determined that a bypass of reunification services was warranted and set a contested hearing under section 366.26 for May 7, 2007. Petitioner Dan C. has again filed a petition challenging the order on remand. We deny the petition on the merits.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Beginning of Dependency through Contested Six-month Review

For the factual and procedural background covering the period from the beginning of Michael H.s dependency through the contested six-month review, see Dan C. I, supra, A114694.

B. Directions from This Court

In Dan C. I we remanded for the limited purpose of determining whether or not the conditions for permitting a bypass of reunification services existed in this case. We specifically noted that at the time of the April 2006 hearing, petitioner was incarcerated at the Humboldt County Correctional Facility and had been detained the very same day the court issued its ruling affording him presumed father status. We stated: Certainly the trial court had abundant evidence before it to determine whether to bypass provision of reasonable services because there was clear and convincing evidence that those services would be detrimental to Michael, based on the factors enumerated in section 361.5, subdivision (e)(1).^[2](Dan C. I, supra, A114694.)

C. Remand Hearing

The remand hearing took place on January 11, 2007. Petitioner testified that he was released from incarceration in June 2006.

Looking at the factors as they existed in April 2006, the court found by clear and convincing evidence that circumstances existed that would render provision of services detrimental to Michael. Specifically, the court noted that Michael was detained in January 2005 and at the time of the April 2006 contested hearing nearly 15 months had passed. (Michael would be approaching age 4 1/2 at that time.) In hindsight, the court acknowledged that petitioners sentence was short.^[3] However, the court further stated that petitioner had made really no progress in the dependency of Lelia, Michaels half-sister.^[4] Additionally, the court found the degree of bonding with Michael H. was not substantial, and the degree of detriment to Michael if services were not offered would be minimal. Finally, the court indicated the nature of petitioners crime and any treatment he received related to his substance abuse.

II. REVIEW

Petitioner maintains that there was no basis in the record to bypass family reunification services. Not so. We examine the juvenile courts decision denying reunification services under the substantial evidence rule. (In re James C. (2002) 104 Cal.App.4th 470, 484.) We conclude that substantial evidence supports the trial courts determination.

First, the trial court properly considered the factors relating to detriment enumerated in section 361.5, subdivision (e)(1). Second, the commissioner conducting the remand was the same commissioner who conducted the six-month contested review hearing. All of the background facts cited in part I.A., ante, were known to her and provide substantial evidence backing the trial courts finding in support of a bypass of reunification services under section 361.5, subdivision (e)(1).

Among the records in this case is a February 24, 2006 addendum report reviewed by the court and referenced in Dan C. I, supra, A114694. This addendum informed the court that visits with Michael were not authorized, were not known to the department, and took place at the same residence that was subject to a search warrant and arrest of petitioner and others in November 2005. As we stated in Dan C. I, supra, A114694, the reporting social worker indicated that initiating visitation would be detrimental to Michael in part because petitioner acted with disregard for the safety and well-being of Michael when he arranged the clandestine visits. Visits during incarceration would be detrimental because the visits in the past had not been observed and the Department could not predict how petitioner would act. The report also included records pertaining to petitioners felony plea to an attempt to provide a place where controlled substances were used or sold.^[5]

As further detailed in Dan C. I,supra, A114694: As well, information was relayed concerning conversations with social workers and others in the dependency proceeding relating to Michaels half-sister. Petitioner made statements that seemed delusional in nature. The foster parents were afraid of him. The social worker also reported that Michael had not expressed a connection with or desire to see petitioner. Further, due to petitioners recent sentence and the issues raised concerning Lelia, petitioner would not be able to provide a stable and safe home for Michael.

There was ample evidence, as detailed above, for the juvenile court to invoke the bypass provision of section 361.5, subdivision (e)(1), by clear and convincing evidence.

III. DISPOSITION

The petition is denied on the merits.

_________________________

Reardon, Acting P.J.

We concur:

_________________________

Sepulveda, J.

_________________________

Rivera, J.

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^[1]All statutory references are to the Welfare and Institutions Code.

^[2]This statute provides that the court is required to order reasonable services when the parent is incarcerated, unless it determines by clear and convincing evidence, those services would be detrimental to the child. In determining whether services would be detrimental, the court must consider the age of the child, the degree of parent-child bonding, the length of the sentence, the nature of the treatment, the nature of the crime . . . , the degree of detriment to the child if services are not offered . . . , and any other appropriate factors. ( 361.5, subd. (e)(1).)

^[3]At the six-month review Dan C. had been sentenced to one year in state prison with 44 days credit for time served.

^[4]Although Lelias contested 12-month review did not occur until May 9, 2006, shortly after the contested review in Michaels case, the facts pertinent to her situation leading up to the May order were detailed in our previous opinion and therefore known to the court. These included reports from the case worker that petitioner rarely demonstrated a parental role or knowledge of the childs needs and rarely responded appropriately to the childs signals or put the childs needs ahead of his own. In fact, when visits increased with petitioner and the other child, she regressed and became destructive. (Dan C. I,supra, A114694.)

^[5]Petitioners criminal record includes a 2003 incarceration for a variety of drug offenses, including providing a place where controlled substances are used or sold.