Filed 1/30/07 In re A.S. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Father Marc S. (Marc) appeals from the disposition findings and order of the Mendocino County Juvenile Court relating to him and his two children, A.S. and M.S. The order followed the filing of a petition by the Mendocino County Department of Social Services (the Department) pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (g).[1] The juvenile court ordered reunification services for mother Nicole V. (Nicole), but bypassed reunification services as to Marc, who was incarcerated in state prison at the time of the proceedings. Marc makes three arguments on appeal: (1) the jurisdictional allegations concerning domestic violence, his assault conviction, and his violent temper were unsupported by substantial evidence; (2) the juvenile court applied the wrong legal standard and therefore abused its discretion when it denied reunification services; and (3) the finding that reunification services for Marc would be detrimental to the children was unsupported by substantial evidence. We reject each of Marcs arguments, and accordingly affirm.

I. Background

On November 3, 2006, the Department filed a juvenile dependency petition pursuant to section 300, alleging two bases for jurisdiction. The first alleged that Nicole failed to protect A.S. and M.S., who were five years old and three years old, respectively, within the meaning of section 300, subdivision (b). Specifically, in allegation b-1, the petition alleged that Nicole was unable to provide for the children a safe and adequate home environment and to protect the children adequately from harm. And allegation b‑2 alleged that Nicole had a substance/alcohol abuse problem which inhibits her ability to parent and to provide the children with a home free from the negative effects of drugs/alcohol. Second, the petition alleged that the children had been left with no provision for support within the meaning of section 300, subdivision (g) on the ground, as set forth in allegation g-1, that Marc [S.], the childrens father, is in state prison at this time and has a lengthy criminal record.

The petition resulted from an incident that occurred in the early morning hours of November 2, 2005, when the Ukiah police received a call alerting them to a disturbance at an apartment building. The reporting party indicated that a female was banging on the windows of a nearby apartment and that it sounded like one of the windows had broken. When the police arrived at the apartment, through a broken window they observed M.S. walking barefoot on broken glass in a bedroom. Inside the residence, officers found Nicole, A.S., M.A., and a thirteen-year-old girl. The petition alleged that upon entering the residence, officers found clothing and garbage strewn throughout the house. Broken bed frames and debris filled one bedroom and the other bedroom containing glass from the broken window, was also completely covered with clothing and garbage. Nicole informed officers that the children had to sleep on a loveseat in the living room because there was no other available place to sleep in the home. According to the petition, Nicole and the 13-year-old, whom Nicole identified as a friend, were highly intoxicated. Nicole was arrested on charges of contributing to the delinquency of a minor and child endangerment. On November 4, 2005, A.S. and M.S. were detained as a result of the incident.

On November 9, 2005, the Department filed an amended petition, adding as allegation b-3 that the [t]he childrens father, Marcus [S.], has a violent temper resulting in a long history in the criminal justice system, and is a potential danger to his children. The amended petition explained that Marc was then serving his third year of a five-year prison term for assault with a weapon causing great bodily injury. It also identified January 26, 2003 and April 21, 2003 as the dates of two instances of police involvement in domestic violence between the parents, noting that [t]he last incident occurred during the last week the father was in the home, prior to his arrest on the above assault charge for which he is imprisoned. On November 15, 2005, the petition was so amended, and a jurisdiction/disposition hearing was scheduled for December 20, 2005.

On December 16, 2005, the Department filed its combined jurisdiction/disposition report.[2] The report described the incident that led to the detention of the children and observed that Nicole had since cleaned the apartment and had acknowledged, and was seeking help for, her drinking problem. The report also addressed the two domestic violence incidents alleged in the petition, first correcting the dates as to when the incidents occurred, the dates apparently being July 16, 2001 and January 26, 2003. The 2001 incident was described as a possible stabbing in which Nicole hit [Marc] in the face with a closed fist and he suffered a cut hand during a tussle with her while she was holding a butcher knife. The incident resulted in Nicoles arrest. The report described the 2003 incident as follows: [Nicole] described Marc [S.] placing his hands around her neck during a domestic dispute and head butting her. He also spit on her several times. There were bruises on her upper arm from being grabbed or shoved on the bed by [Marc], who was arrested for the incident.

The report also contained numerous references to gang involvement. As related by Nicole, her brother, who had been a member of a street gang, was killed in March 2005 in a gang-related shooting.[3] The report also stated that both sides of the family have members involved in street gangs and that, according to Nicoles sister, Marcs family is still involved with gangs in the San Jose area.[4] As to Marcs incarceration, the report noted that since August 18, 2005, Marc had been in administrative lockdown, which was described by Marcs correctional counselor as  the jail inside the prison where inmates are placed due to unacceptable behavior in the general population of the prison. While in administrative segregation, Marc was not allowed access to services offered in the prison. The report identified Marcs release date as December 1, 2007.

As to the parents statements regarding disposition, the report conveyed Marcs belief that he was a good parent to the children prior to being incarcerated, and [he] wishes to resume parenting them once he is released from prison.

The report then recommended that reunification services for Marc and the children be bypassed: The father has had no contact with the children for two years, since he has been in prison, although the mother has kept him informed about them by telephone. When [Marc] was arrested, [M.S.] was one year old, and [A.S.] was three years old. In two phone calls and two letters to the undersigned, [Marc] has not asked about or discussed the children, nor has he indicated a parental type of awareness of their personalities or proclivities. He has declared that he loves them. [] Neither has [Marc] asked about or discussed the situation leading to the childrens detention. He has repeated many times good intentions to resume parenting them, and to give them a good life, as he was attempting to do when he was arrested. He did not indicate remorse for his actions nor for his incarceration, and was unable to imagine or demonstrate any insight into things he might do to improve his personal situation. Also greatly concerning to the Department is the fathers history of violence and gang relations. Considering that [Marcs] current level and type of behavior is unacceptable by prison standards, and his history of domestic violence and gang affiliations, it would appear that [Marcs] continued involvement in the lives of the two small children would present a significant danger to their safety and well-being. . . . Taking into account that [Marc] will remain incarcerated for a minimum of two more years, and the young ages of the children when he was arrested two years ago, it does not appear to be of any benefit to the children to include [Marc] in the family reunification plan. For these enumerated reasons, the Department will be seeking to bypass services to the father, pursuant to Welfare and Institutions Code Section 361.5(b)(12).

On December 20, 2005, the Department filed an addendum to the jurisdiction/disposition report, appending the police reports regarding Marcs 2003 conviction for assault with a deadly weapon and great bodily injury. As described in the reports, Marc was one of four members of the Norteo gang who brutally assaulted a man as he exited his car in a parking lot. The victim identified Marc as the individual who brandished a gun, threatening witnesses to prevent them from helping the victim and striking the victim on the side of the head with the weapon. According to the victim, the attack that was motivated by a feud between the gang members and a friend of the victims.

A contested hearing was held on December 27, 2005, at which Marc testified. As to the issue of the alleged domestic violence incidents, Marc testified about one incident in which he and Nicole had an argument while the children were with his mother. As he described it, he grabbed Nicoles hand in which she was holding a steak knife that she was using for dinner, and when Nicole jerked her hand away, she accidentally cut Marcs finger. The neighbors called the police, and Nicole was subsequently arrested and later entered into a plea bargain. That incident did not result in any charges against Marc. Marc described another incident in which he and Nicole were engaged in a heated argument, and he grabbed her to try and calm her down, keep her from scratching him. Marc was arrested, although the charges were subsequently dismissed. According to Marc, he has never been convicted of any crime of domestic violence with respect to Nicole or his children.

At the hearing, Marc disputed the social workers statement in the jurisdiction/disposition report that he had had no contact with his children since going to prison. He claimed to the contrary: I have maintained contact with them since my incarceration, since day one. As he described it, he sends them birthday cards, Christmas cards, every time [he gets] a chance. He also claimed that he calls them on the telephone, they recognize his voice, and they respond to him as a father. As to A.S., he explained, My daughter knows exactly who I am. She talks to me, she sings me songs, tells me her ABCs, writes me letters, scribbles her name on paper for me, and she tells me what shes doing over the phone. He affirmed that he love[s his] children with all [his] heart and that he desired reunification services. On cross-examination, Marc admitted that he had not seen his children for over two years, since before his incarceration in state prison, and that the last time he saw them was in county jail while he was awaiting transfer to prison.

Marc confirmed that at the time of the hearing he was in administrative segregation at the California Mens Colony in San Luis Obispo, which he claimed occurred because he was assaulted by other inmates shortly after he was transferred there from Corcoran State Prison. He acknowledged that services were not available while he was in segregation. However, he explained that he was seeking a transfer to a facility in Solano, where he was hoping to enroll in a substance and alcohol program, and it was his desire that he would then be offered reunification services, including visitation with his children. Marc speculated that if he was enrolled in the program, his release date could be advanced by up to six months. Marc denied any involvement in gang activity.

Nicole also testified at the hearing, and confirmed that Marc had sent the children multiple cards while incarcerated. She also explained: I write him and tell him what his kids are doing. My daughter will tell me what she says to him, and Ill write the letter, but from her words because she doesnt know all her letters and stuff like that. They draw. I take them paper; they draw him pictures. They take pictures. I send him pictures of their birthdays, her first day of school, her first field trip, the first time she took a bus. I will write him a letter about all that. I write him about everything they do. She also testified that hes a great dad: [] He did anything for them. I have videos of him playing karate with them . . . . He spends all his holidays with his kids. Hes always with them when hes not working.

At the conclusion of the hearing, the court found allegations b-1, b-2, and b-3 to be true and dismissed the g-1 allegation. The court stated, The Court does believe the testimony that [Marc], when hes not incarcerated in state prison, has a good relationship with his children; however, I also have to consider the fact that he was incarcerated when his son [M.S.] was only one year or one-and-a-half years old. He has not seen this child for two years. He has not seen A.S. for two years. [] Hes going to be incarcerated for a period beyond the statutory reunification period. There are two separate and both factually grounded bases for a bypass. Under the [subsection b] (12) ground for bypass there must be a showing by clear and convincing evidence that it would benefit the children to offer reunification to father. I simply cant find it on this record. For that reason, the Departments recommendation to bypass father will be adopted . . . .

The court also found by clear and convincing evidence that [Marc] has been convicted of a violent felony within the meaning of Penal Code 667.5[, subdivision (c)], that is assault with a deadly weapon and personal use of a firearm, which would be 667.5(B)(8). [The intended citation is to Penal Code section 667.5, subd. (c)(8).] Furthermore, [Marc] is incarcerated. By clear and convincing evidence, Section 361.5[, subdivision (e)](1) applies. Reunification services would be detrimental to the children. [] . . . [Marc] will not be offered family reunification services pursuant to Welfare and Institution Codes 361.5[, subdivision (b)] (12) and 361.5[, subdivision (e)](1).

The courts findings and orders were memorialized in a written order dated December 28, 2005, in which the trial court found by clear and convincing evidence that section 361.5[, subdivision](b)(12) of the Welfare and Institutions Code applies in that the father of the children has been convicted of a violent felony, as defined by subdivision (c) of Section 667.5 of the Penal Code, to wit, Assault with a Deadly Weapon Likely to produce Great Bodily Injury (Penal Code section 245[, subd.] (a)(1)) and an enhancement of Infliction of Great Bodily Injury or Intent to Inflict Great Bodily Injury (Penal Code Section 12022.7[, subd.] (a).) After noting that Marc was incarcerated, the court also found by clear and convincing evidence that section 361.5[, subdivision] (e)(1) applies and that reunification services would be detrimental to the children . . . . The court then ordered that Marc shall not be offered reunification services pursuant to Welfare and Institutions Code section 361.5[, subdivision] (b)(12) and 361.5[, subdivision] (e)(1). At the same time, the court found that [s]upervised visits with the father would not be detrimental to the well being of the children and ordered visitation by phone and letter, with in-person contact on a quarterly basis at the social workers discretion.

Marc filed a timely notice of appeal challenging the denial of reunification services.

II. Discussion

A.         Jurisdiction Of The Juvenile Court

We begin with identifying the argument Marc is not making with respect to the courts jurisdictional findings. In his own words, Marc does not contest that the court had enough evidence to take jurisdiction in this case. In other words, he concedes that the court properly took jurisdiction of his children. This is so because, as the Department notes and Marc apparently does not dispute, the allegations against Nicole were uncontested and were sufficient to establish jurisdiction over the children. And, as the Department explains, A jurisdictional finding good against one parent is good against both. (In re Alexis H. (2005) 132 Cal.App.4th 11, 16.) . . . Jurisdiction is taken over the child, not the parents, based upon the harm or risk of harm to the child. (In re Joshua G. (2005) 129 Cal.App.4th 189, 202.) (Accord In re Alysha S. (1996) 51 Cal.App.4th 393, 397 [[A] jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring her within one of the statutory definitions of a dependent.].)

Despite his concession that jurisdiction over the children was proper, Marc challenges the courts jurisdictional findings on the ground that the courts findings sustaining allegation b-3 of the amended petition were not supported by substantial evidence. Specifically, he claims that the evidence does not support a finding that the children were at substantial risk of suffering serious physical harm as a result of domestic violence, Marcs criminal conviction for assault or his violent temper. In other words, Marc does not dispute that the juvenile court had jurisdiction over the children based on the b-1 and b-2 allegations, yet he asks us to find that the b-3 allegations were unsupported by substantial evidence. Marc explains this request: Although the courts jurisdictional order may be affirmed so long as there is substantial evidence to support its order on any valid ground, this does not mean that the juvenile courts findings sustaining allegations unsupported by substantial evidence need not be addressed by a reviewing court. In fact, the law is to the contrary.

The burden is on the appellant in every case to show that the claimed error is prejudicial, i.e., that it has resulted in a miscarriage of justice. [Citation.] (Cucinella v. Weston Biscuit Co. (1954) 42 Cal.2d 71, 82.) Marc has not shown that, despite the findings involving Nicole, he was prejudiced by the supposedly erroneous finding involving him. Because Marc concedes that jurisdiction was proper and cannot show prejudice, we need not determine whether there was substantial evidence supporting each of the allegations. We thus turn to the courts denial of reunification services.

B. Denial Of Reunification Services

As noted above, the juvenile court relied on section 361.5, subdivisions (b)(12) and (e)(1) as alternative grounds for denying reunification services for Marc and the children. Marc contends that in doing so, the court made two errors: first, that the court applied incorrect legal standards for both subdivisions; second, that the courts factual findings were unsupported by substantial evidence. Neither contention has merit.

1. The Court Did Not Abuse Its Discretion By Applying The Wrong Legal Standard

We first consider Marcs argument as it applies to section 361.5, subdivision (e)(1). That subdivision provides in pertinent part, If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall 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 or illness, the degree of detriment to the child if services are not offered and, for children 10 years of age or older, the childs attitude toward the implementation of family reunification services, and any other appropriate factors. Reunification services are subject to the applicable time limitations imposed in subdivision (a). Section 361.5, subdivision (a) limits reunification services for children three years of age of older at the time of removal, such as A.S. and M.S., to 12 months, with a possible extension for six additional months if there is a substantial probablility that the child will be returned to the physical custody of his or her parent within the extended time period. (361.5, subd. (a).)

Marc contends that the juvenile court failed to consider all of the specified factors when determining detriment, instead relying solely on the fact that the remainder of Marcs prison term exceeded the 12-month time period for reunification. His argument derives largely from one statement made by the court at the jurisdiction/disposition hearing. As explained by Marc, the court interrupted trial counsels argument, stating its belief that the legal standard it had to follow was is there some possibility by clear and convincing evidence that this would benefit the children, namely that their father could reunify within the statutory time period?  According to Marc, this is not in fact a correct statement of the standard, because it suggests that reunification services must be denied simply on the basis that the remainder of his prison term exceeded the statutorily prescribed reunification period. Rather, he argues, as set forth in section 361.5, subdivision (e)(1), the length of the sentence is but one of the enumerated factors relevant to the courts determination regarding detriment. While we agree, as does the department, that the length of sentence is just one of the factors to be considered by the court (In re James C. (2002) 104 Cal.App.4th 470, 485-486), we disagree that the juvenile court believed that factor to be dispositive.

First, when viewed in context, the statement by the court with which Marc takes exception does not support Marcs position that the only factor the court considered was that the remainder of Marcs prison sentence exceeded the 12-month reunification period. Immediately prior to the court making its purportedly objectionable statement, counsel for Marc had stated, So I would ask the Court to provide reunification services for him because its not only going to be of benefit to the children in this case because it will make him a better father, but give him something to hope for when he gets out. And even if he doesnt succeed, and even if he doesnt finish reunification, at least the efforts will be worth it for the rest of the childrens lives. The court then corrected counsel on the standard, expressing it as is there some possibility by clear and convincing evidence that this would benefit the children, namely that their father could reunify within the statutory time period? As we understand the courts statement, the court was clarifying that the statute is concerned with what is of benefit to the children, not what is of benefit to Marc, as his counsel had urged. We do not view the courts statement as espousing a belief that the length of Marcs prison sentence was dispositive, or as Marc puts it, that benefit the children meant that a parent could reunify within the statutory period.

Second, the quoted statement ignores the courts other statements on the record, not to mention in its written order, where it expressed the proper standard. As quoted above, towards the end of the hearing, the court stated, There are two separate and both factually grounded bases for a bypass. Under the [subdivision b](12) ground for bypass there must be a showing by clear and convincing evidence that it would benefit the children to offer reunification to father. I simply cant find it on this record. The court also found by clear and convincing evidence that [Marc] has been convicted of a violent felony within the meaning of Penal Code 667.5[, subdivision (c)], that is assault with a deadly weapon and personal use of a firearm, which would be 667.5(B)(8). [The intended citation is to Penal Code section 667.5, subd. (c)(8).] Furthermore, [Marc] is incarcerated. By clear and convincing evidence, Section 361.5[, subdivision (e)](1) applies. Reunification services would be detrimental to the children. [] . . . [Marc] will not be offered family reunification services pursuant to Welfare and Institution Codes 361.5[, subdivision (b)](12) and 361.5[, subdivision (e)](1).

The language in the courts written order is consistent. Nowhere did the court express its belief that it was compelled to find reunification services detrimental to A.S. and M.S. because Marc would not be released from prison until after the 12-month reunification period. To the contrary, the court stated that it simply cant find it on this record, confirming that it considered the entire recordnot just the length of Marcs prison sentencewhen finding reunification services to be detrimental to the children. That record contained evidence concerning the length of time since Marc had seen his children, the young age of the children at the time of his incarceration, the nature of the crime of which Marc was convicted, and the degree of contact between Marc and the children since his incarceration, all pertinent factors to be taken into consideration according to section 361.5, subdivision (e)(1). Certainly the court considered the fact that the remainder of Marcs sentence exceeded the statutory reunification period, but the record simply does not support Marcs contention that the court viewed that factor as dispositive.

We turn now to the alternative ground on which the juvenile court relied for bypassing reunification services between Marc and the children: section 361.5, subdivision (b)(12). Subdivision (b)(12) provides that reunification services need not be provided when the court finds, by clear and convincing evidence, that the parent has been convicted of a violent felony, as defined in subdivision (c) of Section 667.5 of the Penal Code. And subdivision (c) prohibits the provision of reunification services to a parent convicted of a qualifying felony unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child. ( 361.5, subd. (c).)

There can be no question, and indeed Marc admits, that he was subject to bypass under section 361.5, subdivision (b)(12) in light of his conviction for assault with a deadly weapon and personal infliction of great bodily injury. That alone should end the inquiry. However, Marc still contends that the court improperly applied subdivision (b)(12), an argument he explains thusly: In its statement of decision at the conclusion of the combined jurisdictional/dispositional hearing, immediately after stating that [Marcs] going to be incarcerated for a period beyond the statutory reunification period, the court stated that it could not find by clear and convincing evidence that it would benefit the children to offer reunification to their father under (b)(12). [Citation] The courts finding mirrored its earlier comment during argument that benefit the children meant that a parent could reunify within the statutory period. [Citation] Its statements, taken together, demonstrated that the courts bypass under subdivision (b)(12) was inextricably tied to its misconception that the factor of the length of incarceration in subdivision (e)(1) precluded its ordering services for Marc. In other words, according to Marc, the courts failure to find reunification to be in the best interest of the children as required by section 361.5, subdivision (c) stemmed from the courts misconception that it could not order such services because the remainder of Marcs prison term exceeded the statutory reunification period. We rejected this argument above. We need not do so again here.

Ultimately, we find no indication in the record that the court failed to consider all relevant factors when determining that reunification services would be detrimental to ( 361.5, subd. (e)(1)) or would not be in the best interest of ( 361.5, subd. (b)(12)) A.S. and M.S.

2. The Courts Finding That Reunification Services Would Be Detrimental To The Children Is Supported By Substantial Evidence

Having concluded that the juvenile court applied the proper legal standards, we next turn to the question of whether the courts finding by clear and convincing evidence that reunification services would be detrimental to the children was supported by substantial evidence. In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict if possible. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547; In re Basilio T. (1992) 4 Cal.App.4th 155, 170 [on review,  the substantial evidence test applies to determine the existence of the clear and convincing standard of proof. . . . ].) Although all conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible, any such inferences must be reasonable and based on evidence in the record, not surmise or speculation. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) Substantial evidence to support a judgment must be reasonable, credible and of solid value. (In re Terry E. (1986) 180 Cal.App.3d 932, 949.)

In arguing a lack of substantial evidence, Marc notes that in recommending the court bypass services to him the Department cited the young age of the children when Marc was arrested, the length of his incarceration, and his history of violence, gang affiliations, and domestic violence. He then argues that [a]ny evidence of gang activity falls in the category of speculation, and that there is no evidence of detriment to the children from either the domestic violence incidents or his criminal history. Finally, Marc submits that it is not enough that Marc was convicted of a crime of violence that caused serious bodily injury and involved a weapon. The evidence must demonstrate how the nature of the crime shows detriment to his children if services are provided. Otherwise, subdivision (e)(1) could simply state that if the parent was convicted of a certain type of crime reunification services need not be ordered. The crime occurred away from the home and out of the presence of the children. The evidence as to any detriment to the children is completely lacking.

Marcs analysis of the record presents, at best, a myopic view of the evidence. Before the court was evidence that at the time Marc began serving his five-year prison term in 2003, A.S. was three years old and M.S., one year old. The evidence also showed that Marc had not seen the children for at least two years prior to their detention, and that the last time he did see them was as an inmate at the Mendocino County Jail while awaiting transportation to the state prison. In the jurisdiction/disposition report, the Department noted that Marc expressed his love for his children, but at the same time, in two phone calls and two letters to the social workers, Marc never inquired about the children. Further, while Marc testified to a scenario whereby he could obtain an early release in June 2007 by participating in the substance and alcohol program at the state prison in Solano, the court correctly observed that Marc would be required to serve 85% of his five-year term in light of the nature of his offense and that his earliest possible release date was December 1, 2007. Additionally, Marcs scenario is pure speculation and still puts Marcs release date outside the 12-month reunification period. Nothing in the record suggests that an extension to 18-months pursuant to section 361.5, subdivision (a) would be warranted.

Marc also admitted he had been in administrative segregation since his incarceration at the California Mens Colony. Although Marcs testimony attempted to portray himself as a victim who was put in segregation for his own protection, the evidence also showed that administrative segregation is reserved for inmates who exhibit unacceptable behavior. While in administrative segregation, Marc cannot avail himself treatment options, such as parenting classes and anger management programs. Additionally, while Marc contends that the b-3 domestic violence allegations were unsupported by substantial evidence and could not form the basis for juvenile court jurisdiction over the children, Marc himself testified to two incidents between him and Nicole in which violence was involved. In light of this evidence, we conclude that the courts finding by clear and convincing evidence that reunification services would be detrimental to the children within the meaning of section 361.5, subdivision (e)(1) was supported by substantial evidence. Likewise, the same evidence undermines a finding that reunification would be in the best interest of the children pursuant to section 361.5, subdivisions (b)(12) and (c).

In re James C., supra, 104 Cal.App.4th 470 is persuasive. In that case, four minors were detained after a petition was filed alleging that the children came within the jurisdiction of the juvenile court pursuant to section 300, subdivision (b). The petition alleged that the mother had created a detrimental home environment . . . in that . . . the family residence was found in a filthy and unsafe condition . . . . (Id. at p. 474.) The petition made no mention of the father, but the department of children and family services later determined that the father of two of the children was incarcerated at the California Mens Colony in San Luis Obispo. (Id. at p. 476.) The department then filed an amended petition alleging that the father was incarcerated in state prison and that the children were dependents of the court pursuant to section 300, subdivisions (b) and (g). (Id. at pp. 476-477.) A subsequent amendment to the petition alleged that the father had a criminal history of violent and drug-related felony convictions and that his current incarceration was for aggravated assault, infliction of great bodily injury, and a prior prison term enhancement. (Id. at p. 477.)

At the adjudication hearing, a social worker testified that the fathers release date was beyond the period of time reunification services could be provided. (In re James C., supra, 104 Cal.App.4th at pp. 478-479.) At the conclusion of the hearing, the court ordered no family reunification services for the father pursuant to section 361.5, subdivisions (b)(12), (c), and (e)(1). (Id. at p. 479.)

On appeal, as pertinent here, the father challenged the dispositional order denying reunification services. (In re James C., supra, 104 Cal.App.4th at pp. 484-485.) The court rejected this challenge, first noting that reunification services may be denied pursuant to section 361.5, subdivision (b)(12) because the father has been convicted of a violent felony. (Id. at p. 485.) Second, the court concluded that the evidence supports the denial of reunification services based on application of the factors for determining detriment to a child pursuant to section 361.5, subdivision (e)(1). (Ibid.) Specifically, the court observed that at the time of detention, the children were three and five, they had no relationship with their father, the father had been convicted of seven felonies including at least one violent felony involving domestic violence, and the fathers release date exceeded the 12-month statutory reunification period. (Id. at pp. 485-486.)

The situation here is strikingly similar. Here, as in In re James C., supra, 104 Cal.App.4th 470, the court relied on both subdivision (b)(12) and (e)(1) of section 361.5 in denying reunification services to the father. The evidence here showed that A.S. and M.S. were five years old and three years old, respectively, and had not seen Marc for over two years at the time of the detention. Marc was convicted of a violent felony and admitted involvement in two domestic violence incidents. And Marcs release date exceed the 12-month statutory reunification period. Here, as in In re James C., supra, 104 Cal.App.4th 470, the courts finding that reunification would be detrimental to the children was supported by substantial evidence.

In support of his argument that the courts detriment finding was not supported by substantial evidence, Marc cites three cases illustrat[ing] the type of evidence the heightened burden of proof requires. We are not persuaded. Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470 and In re Christina A. (1989) 213 Cal.App.3d 1073, are easily distinguishable, as they involved denial of reunification services pursuant to section 361.5, subdivision (b)(2) and therefore did not consider the subdivision (e)(1) factors that govern the courts finding of detriment. The third case, In re Brian M. (2000) 82 Cal.App.4th 1398, is equally inapposite in that it involved the denial of reunification services to a mother under a provision authorizing denial of services if the court finds a history of extensive, abusive and chronic drug or alcohol use and finds the parent has resisted prior treatment during a three-year period immediately prior to the filing of the dependency petition, or the parent has failed or refused to comply with a drug or alcohol treatment program . . . . (Id. at pp. 1401-1402.) Again, it did not involve a finding of detriment based on the section 361.5, subdivision (e)(1) factors or otherwise.

III. Disposition

The dispositional order is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Lambden, J.

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

[2] We omit from this recitation of the factual and procedural history details of the Departments recommendations and the courts findings and orders as they pertain to Nicole. The court ordered reunification services for Nicole and the children, and Nicole has not appealed the courts order.

[3] Nicole later testified this occurred in February 2005.

[4] It also related Marcs sisters assertion that Nicole was involved with the childrens family in gang matters while [Nicole and Marc] were together. That allegation was subsequently stricken.