Filed 9/17/18 Michael M. v. Superior Court CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In this juvenile writ proceeding, Michael M. (father) seeks extraordinary relief from the juvenile court order declining to provide him with reunification services and setting a permanency planning hearing with respect to his young daughter, Z.M. (born August 2017). Specifically, father argues that the juvenile court erred in denying him reunification services pursuant to subdivisions (b)(10) and (b)(13) of section 361.5 of the Welfare and Institutions Code[1] and failed to make any explicit findings with respect to subdivision (b)(16) bypass. Father also avers that offering reunification services to him would have been in the minor’s best interests. Although father correctly highlights numerous procedural errors in the juvenile court’s bypass determinations, we conclude that the court’s underlying decision in this case to forgo reunification efforts with father was amply supported by the evidence. We therefore deny the petition.

I. BACKGROUND

In September 2017, shortly after Z.M.’s birth, the Contra Costa County Children and Family Services Bureau (the “Bureau”) received a referral regarding a domestic violence incident between father and Michaela H. (mother). The Bureau was unable to investigate because they could not locate the couple. In November 2017, an additional referral stated that mother had used the minor as “ ‘a shield’ ” during the domestic dispute, but, again, the Bureau could not track down the family in order to pursue the matter. Thereafter, in February 2018, the Bureau located father living in the home of the paternal grandmother and great grandmother. He was caring for Z.M. on his own while mother was reportedly homeless and in between substance abuse programs.

Although father claimed to be providing “excellent care” for Z.M., the Bureau was concerned about the infant’s wellbeing due to the parents’ extensive child welfare histories and father’s status as a registered sex offender. In 1998 (when father was 22) he pled no contest to two felony counts of unlawful sexual intercourse with a minor under the age of 14 (Pen. Code, § 261.5, subd. (d)), as a result of which he is required to register in accordance with Penal Code section 290. When asked about these convictions, father stated that he had a girlfriend at that time who he thought was 16. He claimed that, after they broke up, he learned she was only 13. However, according to documentation provided to the juvenile court, the charges included acts with two girls under the age of 14, at least one of whom was 11 and not previously involved with father.

In addition, prior to the instant dependency action, father was involved in child welfare proceedings with respect to five other children.[2] In 2013, his biological daughter, A.R., was removed from her mother at birth due to the mother’s chronic substance abuse. Although father expressed interest in visiting and ultimately caring for the minor, the Bureau had concerns due to father’s criminal history and possible substance abuse. It recommended that father participate in an assessment and submit to random drug testing. Ultimately, father’s section 388 petition to be declared A.R.’s presumed father was denied, and his parental rights were terminated in February 2014.

Thereafter, in June 2016, the juvenile court sustained dependency petitions with respect to father’s four other children—K.M., O.M., T.M., and S.A.—stating the father was a registered sex offender, had a substance abuse problem, and became violent while intoxicated. Specifically, father had slapped both K.M. and O.M. on the face and had grabbed and shaken T.M. on the floor causing physical injury. The related dispositional report included statements from the minors that father had threatened to kill them while in a rage and that, when he drank and smoked, he was physically abusive and “ ‘not normal.’ ” Father appeared intoxicated on numerous occasions during this timeframe. He admitted to having a drinking problem, but informed the social worker that he would not stop. He visited the Bureau’s office on a daily basis, demanding to see his children and making “long ranting statements about the world that were paranoid, bizarre and seemed to have no basis in reality.” He claimed he only loved and wanted the baby (S.A.) because the other children were “ ‘a bunch of snitches.’ ” At other times, father appeared penitent and requested services, but he never followed through with them.

In addition to substance abuse concerns, father’s relationships with the two mothers of the four minors were reported to be marked by domestic violence, with father being extremely controlling and physically abusive. According to father, he resided with S.M. (the mother of K.M., O.M., and T.M.) for several years until she left home and never returned in October 2011. He did not know the reason for her sudden departure and, as of the July 2016 dispositional report, her whereabouts remained unknown. Similarly, father stated that he lived with L.G. (mother of S.A.) for a period of time until he told her to leave. L.G.’s whereabouts are also unknown. As of the July 2016 dispositional report, her mother had not heard from her for almost a year.

While these earlier dependencies were pending, father was arrested for multiple probation violations, assessed to be a chronic alcoholic, and released to a residential treatment program. However, he was only in the program for two weeks when the police were called due to father being involved in a dispute with a female staff member. Father was ultimately arrested after being verbally abusive and physically assaultive to three different women on that day, including a responding police officer. In August 2016, father was denied reunification services with respect to the four minors at issue due to his chronic substance abuse and status as a registered sex offender, the Bureau opining that father “shows very little likelihood in recovering or being safe and stable enough to have custody of these children in the future.”

When questioned during the investigation for the current case, father adamantly denied ever physically abusing his older child, despite the prior dependency findings and his related arrest. Instead, he asserted that the child’s physical injuries were the result of the children fighting amongst themselves. He also denied physically abusing mother. In particular, he claimed that mother hit him and herself during the incident in September 2017 and that she had hit him on numerous other occasions that he did not report. Mother, in contrast, stated that father had physically assaulted her in September 2017 after the baby started crying while they were all sleeping in father’s van, and mother, who is hearing impaired, did not hear her. Mother admitted kicking father in the head three times, after which father hit her in the face three to five times with a closed fist. Mother reported that she was afraid of the way father looked at her when he hit her and therefore called the police. The responding officer reported that mother had visible injuries. She was taken to the hospital for medical treatment, and father was arrested. Despite this incident, mother and father remained a couple, mother stating that she didn’t understand why the domestic violence in their relationship was a big deal as it was nothing compared to the violence she had suffered with P.C. As for substance abuse, father denied using any illegal drugs, but mother reported that certain suspected methamphetamine bags previously found in the van were his and that he had been using methamphetamine, although he was not currently doing so.

On February 26, 2018, the Bureau filed a dependency petition alleging that Z.M. was a minor described by subdivisions (b), (d), and (j) of section 300 due, among other things, to father’s chronic substance abuse, father’s status as a registered sex offender, domestic violence between mother and father, and the March 2017 termination of father’s parental rights with respect to three other minors.[3] Father was declared to be Z.M.’s presumed father at the detention hearing the next day, and services, including substance abuse testing and treatment, were ordered for him. Thereafter, on April 12, 2018, the juvenile court sustained jurisdictional allegations under all three subdivisions of section 300.

While disposition was pending, the social worker reported that father was finally admitting that he needed “ ‘therapy, counseling, mental health and outpatient services’ ” and had made some efforts to get into substance abuse treatment. However, he refused to drug test and provided no evidence that he had actually engaged in any services. At the conclusion of the contested dispositional hearing on June 19, 2018, the juvenile court declared Z.M. to be a juvenile court dependent, found that both parents met the criteria for bypass of reunification services, and set the matter for a permanency planning hearing so that a permanent out-of-home plan could be developed for the minor.

Mother and father both filed timely notices of their intent to file writ petitions, but only father actually filed a petition, which we now address. (Rules 8.450(e), 8.452.)

II. DENIAL OF REUNIFICATION SERVICES

A. Bypass of Reunification Services Under Subdivision (b) of Section 361.5

As a general rule, when a child is removed from parental custody under the dependency laws, the juvenile court is required to provide reunification services to “the child and the child’s mother and statutorily presumed father . . . .” (§ 361.5, subd. (a).) The purpose of reunification efforts is to “eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible.” (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) However, it is also the “intent of the Legislature, especially with regard to young children, . . . that the dependency process proceed with deliberate speed and without undue delay.” (Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1151.) Thus, the statutory scheme recognizes that there are cases in which the delay attributable to the provision of reunification services would be more detrimental to the minor than discounting the competing goal of family preservation. (See Ibid.) “Specifically, section 361.5, subdivision (b), exempts from reunification services ‘those parents who are unlikely to benefit’ from such services or for whom reunification efforts are likely to be ‘fruitless.’ ” (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1120.)

The statutory sections authorizing denial of reunification services are sometimes referred to as “bypass” provisions. (Melissa R. v. Superior Court (2012) 207 Cal.App.4th 816, 821.) We review an order denying reunification services in accordance with these bypass provisions for substantial evidence. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) Under such circumstances, we “review the entire record in the light most favorable to the trial court’s findings to determine if there is substantial evidence in the record to support those findings.” (A. A. v. Superior Court (2012) 209 Cal.App.4th 237, 242.) In doing so, we are mindful of the higher standard of proof required in the court below when reunification bypass is ordered. (See T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1238-1240.)

As father persuasively argues, there were numerous flaws in the trial court’s bypass determinations in this case. For instance, the juvenile court’s conclusion that reunification bypass was proper based on subdivision (b)(10) of section 361.5 required a finding that “the court 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.” (§ 361.5, subd. (b)(10).) However, as set forth above, father never actually received reunification services with respect to any of his five previous dependent children, and thus subdivision (b)(10) bypass was not available on these facts.

Similarly, the juvenile court’s decision to deny father reunification services pursuant to subdivision (b)(13) of section 361.5 was based on a finding that father had “failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible.” (§ 361.5, subd. (b)(13).) Obviously, since father was never offered reunification services in his prior dependency proceedings, he was never ordered to complete a section 358.1 case plan with which he could then refuse to comply. (See § 358.1; Laura B. v. Superior Court (1998) 68 Cal.App.4th 776, 779, fn. 3 [to deny reunification services under subdivision (b)(13) due to a parent’s failure to comply with a case plan, the substance abuse programs at issue “must have been components of prior reunification plans recommended pursuant to section 358.1 and subsequently ordered by the juvenile court in formal dependency proceedings”].) And, while the dispositional report in this matter suggested a third ground for reunification bypass—subdivision (b)(16) of section 361.5—it did not include recommended findings with respect to subdivision (b)(16) and thus the juvenile court—in adopting the Bureau’s recommendations—failed to make any.[4]

Given these infirmities in the juvenile court’s bypass decision, father argues that the matter should be reversed with instructions that he be provided with reunification services on remand. We do not, however, believe that reversal is either necessary or appropriate in this case. Indeed, while it failed to properly dot its i’s and cross its t’s, the juvenile court clearly believed that reunification bypass was the correct outcome on this record. In particular, when denying services to both parents, the court remarked: “It’s staggering history. It’s just staggering. . . . [¶] This child would not be safe. [The parents] have done nothing for now for this case at all. They are not drug testing, they are not in any kind of programs and they both need so much help. So I’m always reluctant to do this but I have no choice. I have no choice in this case.”

Further, subdivision (b)(11) of section 361.5 allows for reunification bypass where the court finds, by clear and convincing evidence, “[t]hat the parental rights of a parent over any sibling or half sibling of the child had been permanently severed” and that the 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.” Here, the court’s jurisdictional findings include the uncontroverted fact that father’s parental rights were terminated with respect to three of his children in March 2017. And, in its consideration of subdivision (b)(10) bypass, the juvenile court expressly found that father had not “made a reasonable effort to treat the problems that led to removal” of these half siblings. Under such circumstances, we can infer a bypass determination pursuant to subdivision (b)(11), assuming that the juvenile court’s “reasonable efforts” finding was supported by substantial evidence. (In re S.G. (2003) 112 Cal.App.4th 1254, 1260-1261; In re Rebekah R. (1994) 27 Cal.App.4th 1638, 1652; In re Corienna G. (1989) 213 Cal.App.3d 73, 83-84; see also In re E.R. (2016) 244 Cal.App.4th 866, 881, fn. 13; People v. Geier (2007) 41 Cal.4th 555, 582 [appellate court reviews the correctness of the court’s ruling, not its reasoning, “and if the ruling was correct on any ground, we affirm”].)

We conclude that the court’s reasonable efforts finding was amply supported by the record in this case. The problems that led to the removal of Z.M.’s half-siblings included father’s substance abuse, domestic violence, and status as a registered sex offender. Since the half-siblings were removed in March 2016, father has not made appreciable progress in tackling any of these very significant and long-standing issues. Indeed, he made no efforts prior to the August 2016 dispositional hearing in the previous matter. Moreover, with respect to his sex offender status, while father asserts that he has not reoffended in the twenty years since his convictions, the record reflects that he continues to minimize, rather than accept responsibility for, these very serious crimes. Father additionally points to his May 2017 completion of a 16-week anger management program as evidence of his reasonable efforts with respect to domestic violence. However, a mere four months later, he was involved in a serious domestic violence incident with mother, punching her in the face three to five times with a closed fist and causing her “visible injuries.” Finally, father argues that his completion of a three-month outpatient substance abuse treatment program in December 2016 is evidence of reasonable efforts to treat his chronic substance abuse problem. But the record reflects that he continued to use methamphetamine and, while he admitted to the social worker in this case that he needed help and made some efforts to get into a substance abuse treatment prior to the dispositional hearing, he refused to drug test and did not successfully join any treatment program. We understand that reasonable efforts in this context are not synonymous with cure. (K.C. v. Superior Court (2010) 182 Cal.App.4th 1388, 1393.) However, while we commend father for finally making some efforts to address his deep-seated problems, we simply cannot characterize those efforts as “reasonable” within the meaning of the bypass statute. (See R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 914 [“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”].)

In sum, substantial evidence more than supports the application of subdivision (b)(11) to father in this case, and therefore—despite its procedural carelessness—we decline to disturb the juvenile court’s ultimate conclusion that denial of reunification services was justified under subdivision (b) of section 361.5.

B. Reunification Efforts Under Section 361.5, Subdivision (c)

Once the juvenile court determines that a parent is described by certain bypass provisions—including subdivisions (b)(10), (b)(11), (b)(13) and (b)(16)—it cannot order reunification services for the parent “unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.” (§ 361.5, subd. (c)(2).) In such a situation, it is the parent’s burden to prove that the minor would benefit from the provision of court-ordered services. (See In re Gabriel K. (2012) 203 Cal.App.4th 188, 197.) We review a juvenile court’s best interests determination in this context for abuse of discretion. (In re William B. (2008) 163 Cal.App.4th 1220, 1229 (William B.).)

Here, father asserts that the provision of reunification services to him would have been in Z.M.’s best interests given both his progress and his consistent and successful visitation with the minor, who he had cared for during the first six months of her life. However, father’s attorney did not make this claim in the juvenile court, even though, as stated above, it was father’s burden to do so. Under such circumstances, we deem the argument forfeited. (See In re T.G. (2015) 242 Cal.App.4th 976, 984 [citing cases].) Moreover, we see no reason to excuse father’s forfeiture on these facts. Indeed, even were we to reach the merits of father’s claim, we could not—given the intransigent nature of father’s serious problems with both domestic violence and substance abuse—conclude that the juvenile court abused its discretion in denying father access to reunification services with respect to his infant daughter. (See In re Allison J. (2010) 190 Cal.App.4th 1106, 1116 [“[t]o determine whether reunification is in the child’s best interest, the court considers the parent’s current efforts, fitness, and history; the seriousness of the problem that led to the dependency; the strength of the parent-child and caretaker-child bonds; and the child’s need for stability and continuity”]; see also William B., supra, 163 Cal.App.4th at p. 1227 [acting in a child’s best interests involves efforts “ ‘ “to maximize a child’s opportunity to develop into a stable, well-adjusted adult” ’ ”].)

III. DISPOSITION

The petition is denied on its merits. (§ 366.26, subd. (l)(1)(C), (4)(B).) Because the permanency planning hearing in this case is set for October 4, 2018, this opinion is final as to this court immediately. (Rules 8.452(i), 8.490(b)(2)(A).) Father’s request for a stay is denied as moot.

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REARDON, J.

We concur:

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STREETER, ACTING P. J.

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TUCHER, J.