Manuel O. v. Sup. Ct.

Filed 4/5/06 Manuel O. v. Sup. Ct. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDING. Extraordinary writ petition. D. Zeke Zeidler, Judge. Writ granted.

Donna Wright Bernstein for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Frank J. DaVanzo, Principal Deputy County Counsel for Real Party in Interest.

* * * * * *

Petitioner Manuel O. seeks writ review of the juvenile court's December 7, 2005 order denying reunification services regarding his sons, Vincente O. and Ricardo O., and referring the matter to a Welfare and Institutions Code section 366.26 hearing.^[1] (Cal. Rules of Court, rule 38.1.) He contends the juvenile court erred in finding that he received due process in connection with a prior dependency proceeding and in denying him services under section 361.5, subdivision (b)(10) in the present case. Although we find that petitioner received due process, we conclude that the trial court was not permitted to rely on section 361.5, subdivision (b)(10) in denying petitioner reunification services. We therefore grant the petition.

I. BACKGROUND

This case involves the tragic consequences of a mother's ingestion of alcohol during her numerous pregnancies and a father's complete disregard for his children's safety, both prior to their birth and following their birth.

Emily C. is the mother of six children, Nicole C. (age 20), Jose R. (age 13), Manuel O. (age 6), Evelyn C. (age 4), Vincente O. (age 2) and Ricardo (age 7 months).^[2] Petitioner is the father of Manuel, Vincente and Ricardo. Vincente and Ricardo are the subjects of this petition.

2002 Petition. In January 2002, the Los Angeles County Department of Children and Family Services (DCFS) filed a dependency petition on behalf of Nicole, Jose, Evelyn and Manuel. The only allegation against petitioner was that he had a history of domestic violence against Emily C. and that this history endangered Manuel and his siblings. Later, these allegations were sustained. In 2003, the juvenile court denied petitioner reunification services based on the fact that his whereabouts were unknown.

While the dependency proceedings involving Nicole, Jose, Evelyn and Manuel were ongoing Emily C. became pregnant with Vincente. Vincente, who was born in July 2003, was not detained because Emily C. was undergoing alcohol rehabilitation at his birth.

2005 Petition. On August 4, 2005, DCFS filed a section 300 petition on behalf of Vincente and Ricardo. It was alleged as follows: Ricardo had been born suffering from a detrimental condition which consisted of symptoms of alcohol withdrawal, and had been diagnosed with fetal alcohol syndrome (FAS). Some of Ricardo's siblings had also been born with withdrawal symptoms and had been diagnosed with FAS.^[3] Emily C. had a 13-year history of alcohol abuse and was a current user of alcohol. She had been offered reunification services and had failed to resolve her substance abuse problem. Such alcohol abuse by Emily C. placed the children at substantial risk of physical harm. Petitioner knew or reasonably should have known of Emily C.'s alcohol abuse and failed to take action to protect the children. Emily C.'s alcohol abuse and petitioner's failure to take action to protect the children endangered their physical and emotional health and safety, placing them at substantial risk of physical harm. Petitioner had abused alcohol in the past and was a current abuser of alcohol, which rendered him incapable of providing his children with regular care and supervision. He had physically abused Emily C. in the past. He had failed to comply with prior court orders and, therefore, had failed to reunify with Manuel, Jose and Evelyn, who were under a legal guardianship with their maternal grandmother.

Detention Hearing. On August 4, 2005, the juvenile court held a detention hearing. In a report prepared for the hearing, DCFS advised that on August 1, 2005, it received a referral that Ricardo was in the hospital neonatal intensive care unit and was being fed with a nasal tube. Hospital staff advised that when Emily C. arrived at the hospital in labor with Ricardo she â€