Filed 4/13/17 Oscar T. v. Superior Court CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE


OSCAR T.,
Petitioner,
v.
THE SUPERIOR COURT OF MARIN COUNTY,
Respondent;
MARIN COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES et al.,
Real Parties in Interest.



A150653

(Marin County
Super. Ct. No. JV 26346A)


Petitioner Oscar T. (father) petitions this court for extraordinary writ review of a juvenile court order setting a selection-and-implementation hearing under Welfare and Institutions Code section 366.26 for his daughter, four-year-old Samantha T. Father argues that the juvenile court erred by bypassing his reunification services under section 361.5, subdivision (e)(1) (section 361.5(e)(1)), which applies when a parent is incarcerated and the court finds by clear and convincing evidence that services would be detrimental to the child. We deny the petition.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Samantha first came to the attention of the Marin County Department of Health and Human Services (Department) in early 2013, when she was a few months old, after E.B. (mother) reported that father had come home drunk and threatened to kill her and the baby. Samantha remained in mother’s care for about a year until being removed in March 2014. Both parents received reunification services, and that December, the juvenile court terminated mother’s services and returned Samantha to father’s custody. Father successfully completed his case plan and maintained his sobriety, and the court dismissed the case in June 2015.
In late August 2016, the Department filed the petition that initiated this case, alleging that the juvenile court had jurisdiction over Samantha under section 300, subdivision (b)(1) because the parents had a history of domestic violence and alcohol abuse impairing their ability to care for her. Mother reported that a few days earlier she had gone fishing with father and Samantha. Father, who was drunk, pushed mother, mother threw his $400 fishing rod in the bay, and father began hitting mother. The three then left together in father’s car, and father choked mother and hit her several more times. Mother eventually jumped out of the car and reported the incident to a police officer, who noted that mother was intoxicated. According to the police report, a witness driving by “had an unobstructed view of [mother] being punched in the passenger seat.” Mother went to the hospital for facial swelling and contusions, and she obtained an emergency protective order protecting her from father.
After mother exited his car, father drove away from the scene with Samantha, and the police did not locate them until the following night. Samantha was removed from father’s care, and she reported to a social worker that father had hit mother. Father was arrested for “charges related to Domestic Violence and Violation of Probation,” and the petition noted that he had “an I.C.E. hold.” He denied hitting mother, explaining that she had shown up drunk and attacked him and fell when he pushed her away. He also denied drinking any alcohol.
The juvenile court ordered Samantha detained, and she was placed in a foster home. The court ordered that father participate in alcohol and drug testing, substance abuse treatment, domestic violence treatment, and parenting education. The court also ordered that father have visitation with Samantha after being released from jail and gave the Department discretion to order visitation while father was still in custody. In October 2016, after the petition’s allegations about the parents’ alcohol abuse were slightly amended, both parents submitted on jurisdiction and the court sustained the petition. The court ordered that father be permitted to have contact with Samantha by phone and have supervised visitation after being released. The court also ordered visitation for Samantha’s paternal grandparents, with whom she and father had lived before her removal.
The December 2016 disposition report stated that Samantha had been placed with her grandparents, who wished to gain custody if she was unable to reunify with her parents. Father was still in custody at the Marin County Jail facing a felony charge under Penal Code section 273.5 (infliction of corporal injury on spouse/cohabitant) and misdemeanor charges under Penal Code sections 243, subdivision (e)(1) (battery on spouse/cohabitant) and 1203.2 (violation of probation), and he had an immigration hold as a result of his arrest. He also had multiple misdemeanor convictions dating back to 2002. Father had visits with Samantha at the jail in early September and late December, but the report stated that “the Department ha[d] not provided regular in-person supervised visits to [father] while he remain[ed] in custody.”
The disposition report recommended that father not be offered reunification services under section 361.5(e)(1). The report observed that although it was “unclear how long [father would] be in custody since he ha[d] yet to be convicted or sentenced[,] . . . there [was] a likelihood that [he would] be incarcerated for longer than the statutory time of services (12 months),” and he was also facing deportation to Guatemala. Father’s probation officer confirmed that father would be in jail at least through the end of January 2017. It also appeared that father needed “more intensive treatment in substance abuse and domestic violence prevention” given Samantha’s removal from his care for the second time in two years, but he “[might] not have access to the appropriate level or type of treatment while incarcerated.” As a result, it would “be challenging for him to meet his case plan goals” even if he remained in the United States. The report opined that although his bond with Samantha was strong, she would not experience much detriment if services were not offered because she was also bonded to her grandmother, whom father acknowledged was “a main caregiver to Samantha prior to the Department’s involvement since he and Samantha lived in the same home with [her],” and Samantha could maintain a bond with father if her grandparents adopted her.
Father opposed the bypass of his reunification services, and a contested disposition hearing was held in February of this year. At the hearing, a social worker testified about the “three main reasons” the Department opposed offering services to father. First, he had a “significant history of alcohol use and domestic violence” that had contributed to “a long criminal history dating back to 2002,” and Samantha “had been exposed to incidents of domestic violence” between her parents since she was an infant. Second, the Department had to initiate a case for the second time despite father’s successful completion of his previous case plan, and Samantha was now old enough that witnessing domestic violence between her parents was even more traumatic. Finally, because of her “developmental age” Samantha had a particular “need for a consistent, permanent caregiver, which while incarcerated [father could] not be,” and jail visits “could be detrimental due to the fact that they’re noninteractive, especially if this were to be over a prolonged period of time.” The social worker did acknowledge that father and Samantha had “a strong parent child bond,” that they had recently had a positive visit, that father had reported engaging in some services in jail, and that there was “no proof” other than mother’s statements that father was actually intoxicated during the fishing-trip incident.
The juvenile court determined there was clear and convincing evidence that providing reunification services to father would be detrimental to Samantha. Addressing father’s incarceration, the court stated, “[Father] has not yet been sentenced, but I do note that he has pled guilty to a felony. And given his criminal history, which is significant going back to [2002], this court does not believe that he would be released in the near future and can anticipate some significant incarceration as part of that plea. . . . [I]t’s not quite speculation because this court does have knowledge and an understanding of the sentencing laws and guidelines in cases such as this. So the court does not believe that it looks like Father will be released within the reunification timeline.” The court further stated, “[T]here is an ICE hold. I don’t know what that will mean, or not mean, although it could extend the time that he is unavailable to be fully participatory or active in a reunification plan.” The court also noted other factors weighing in favor of a finding of detriment. Although father and Samantha had “a good bond,” Samantha was at “an important developmental age,” father had continued to engage in domestic violence despite a long course of treatment in the previous case, and there would be little detriment to Samantha if father did not receive services because her grandmother would continue to be her primary caregiver. After also denying reunification services to mother based on her failure to address her substance-abuse problem (see § 361.5, subd. (b)(13)), the court continued visitation for both parents and set a section 366.26 hearing for June 5.
II.
DISCUSSION
Father claims that the juvenile court committed reversible error by denying him reunification services. We disagree.
Reunification services must be provided to an incarcerated parent “unless the [juvenile] 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 length and nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered[,] . . . the likelihood of the parent’s discharge from incarceration . . . within the reunification time limitations . . ., and any other appropriate factors.” (§ 361.5(e)(1).)
We review an order denying reunification services for substantial evidence. (D.F. v. Superior Court (2015) 242 Cal.App.4th 664, 669.) In doing so, we view the evidence in the light most favorable to the Department, the prevailing party below, and “indulge all legitimate and reasonable inferences to uphold the [juvenile] court’s order.” (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 419.)
Initially, father contends that the Department “failed to appreciate and fully comprehend [its] burden of proving detriment” because the disposition report noted that there would be “very little detriment to the child if services are not offered to the father.” He argues that this is the wrong standard, “as the law clearly requires a showing of detriment to the child if services are offered, not if services are bypassed.” Although father is correct that the ultimate issue under section 361.5(e)(1) is whether reunification “services would be detrimental to the child,” that statute also provides that one of the factors to be considered is “the degree of detriment to the child if services are not offered.” Indeed, the disposition report noted that bypassing services would pose little detriment to Samantha under a heading addressed to that factor. The Department understood the applicable legal standards.
Father claims that “the unsupported opinion and speculation of a social worker” about the possible length of father’s sentence and the consequences of his immigration hold did not constitute substantial evidence of detriment. Although the length of father’s potential sentence and the likelihood of his discharge before the reunification time limit were factors for the juvenile court to consider, “[s]ection 361.5[(e)(1)] . . . does not require that each listed factor exist in any particular case, nor does it specify how much weight is to be given to a factor bearing on detriment, listed or not.” (Edgar O. v. Superior Court (2000) 84 Cal.App.4th 13, 18.) In particular, there is no requirement that an incarcerated parent be sentenced before the court can bypass reunification services under section 361.5(e)(1). (Edgar O., at pp. 16-17.) Thus, certainty about father’s sentence and immigration status was not required. Here, the 12-month statutory reunification period was set to expire in late October 2017, about nine months after the disposition hearing. (See §§ 361.49, 361.5, subd. (a)(1).) Given father’s criminal history, the charges he was facing, and his undisputed deportability, the juvenile court was entitled to consider the prospects for his continued unavailability in determining that services would be detrimental to Samantha.
Father also contends that the social worker’s opinion about the extent of “any treatment required to address the safety concerns regarding [his] parenting” was speculative and did not constitute substantial evidence of detriment. The record shows that despite receiving six months of reunification services in the prior case, father committed domestic violence in front of Samantha the following year, amply supporting the conclusion that he would require more extensive treatment in this case to address the issues leading to her removal from his care. Although we agree with father that “[t]he fact that it may be challenging for [him] to meet his case plan” alone does not establish detriment (see In re Kevin N. (2007) 148 Cal.App.4th 1339, 1344), it was an appropriate factor for the juvenile court to consider in determining whether services would be detrimental to Samantha.
Moreover, father does not address other factors the juvenile court found to weigh in favor of bypassing reunification services, including Samantha’s developmental age, her strong bond with her grandmother, and father’s persistent commission of domestic violence. Indeed, the social worker did not focus on father’s incarceration and immigration status in her testimony at the disposition hearing, instead emphasizing that due to her age Samantha had a heightened need for stability and an increased vulnerability to being exposed to domestic violence. Thus, even if father were correct that there was not substantial evidence to support certain conclusions involving his incarceration and treatment, he has not demonstrated that the court’s ruling was erroneous because of the other evidence supporting a finding of detriment.
Father also claims that the juvenile court abused its discretion by relying on extra-record information about his criminal case. In particular, he takes issue with the court’s statement during the disposition hearing that he had “pled guilty to a felony,” although he does not claim that the statement was inaccurate. We agree with the Department that father forfeited this claim by failing to object below. (See In re S.B. (2004) 32 Cal.4th 1287, 1293.) Indeed, after asking father’s counsel whether she was aware father had entered a plea, the court disclosed that father had pleaded guilty to a felony, and counsel responded, “Okay.” In any event, the claim lacks merit because father fails to show a reasonable probability that the court would have reached a different ruling had it not considered this information about his plea.
Finally, father claims that the juvenile court’s reliance on Fabian L. v. Superior Court (2013) 214 Cal.App.4th 1018 in reaching its ruling “was misplaced and unfairly prejudiced [him].” (Capitalization omitted.) In Fabian L., the incarcerated father’s reunification services were terminated at the six-month review hearing. (Id. at p. 1022.) In affirming the termination of services, the Court of Appeal expressed dismay that the juvenile court had not bypassed services in the first place under section 361.5(e)(1), creating “unfair circumstances” in which the father had no real hope of addressing the problems that led to removal despite his compliance with the case plan to the extent he could while in prison. (Fabian L., at pp. 1029-1031.) The decision emphasized that it is appropriate to bypass services under section 361.5(e)(1) when the provision of services “ ‘would be detrimental to the child since it would delay permanency with no likelihood of success,’ ” thus “ ‘setting everyone up for failure, including the parent, agency, and child.’ ” (Fabian L., at pp. 1030-1031, italics omitted.)
Here, in announcing its ruling, the juvenile court stated, “So there are many cases where offering of services toward reunification [is] appropriate for an incarcerated parent, but not when those services have little to no likelihood of success and it only serves to delay the stability of the child. And I’m referring to [Fabian L. v. Superior Court, supra, 214 Cal.App.4th 1018] for that authority.” We agree with father that Fabian L. did not have the same procedural posture as this case does, and the decision’s observations about the desirability of bypassing reunification services under section 361.5(e)(1) are therefore dicta. Nonetheless, we fail to see anything objectionable about the juvenile court’s reference to Fabian L., which supported the court’s point that providing services to father would be detrimental to Samantha because they had a low likelihood of success and would delay her stability. Father argues that Fabian L.’s “reasoning does not compel the conclusion that the [Department’s] evidence established as a matter of law that providing [him] with reunification services would be detrimental to the minor,” but we do not read the juvenile court’s statements as evincing any such belief. Finally, even if the court had misapplied Fabian L. it would not be an independent ground for reversal, and father does not urge otherwise.
III.
DISPOSITION
The petition for extraordinary writ relief is denied on the merits. (Cal. Rules of Court, rule 8.452(h)(1); see § 366.26, subd. (l).) The request for a stay of the selection-and-implementation hearing under section 366.26 scheduled for June 5, 2017, is denied as moot. This decision shall be final immediately in the interests of justice. (Cal. Rules of Court, rules 8.452(i), 8.490(b)(2)(A).)


 

_________________________
Humes, P.J.


We concur:


_________________________
Margulies, J.


_________________________
Dondero, J.












Oscar T. v. Superior Court of Marin County (A150653)