Peter R. v. Superior Court

Filed 10/5/07 Peter R. v. Superior Court CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

ORIGINAL PROCEEDINGS; petitions for extraordinary writ. Jan Levine, Judge. Writ denied.

Law Offices of Alex Iglesias, Steven D. Shenfeld and Karen Rose for Petitioner, Peter R.

Office of the County Counsel, Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Senior Deputy County Counsel, for Real Party in Interest.

Childrens Law Center of Los Angeles CLC 1, Tamalani Barnett, for Cruz R.

No appearance for Respondent.

_____________________________

Peter R. (father), the father of Cruz R., petitions for extraordinary relief pursuant to California Rules of Court, rule 8.452. He seeks review of an order setting a permanent plan hearing under Welfare and Institutions Code section 366.26.^[1] Father contends that the juvenile court erred in sustaining a portion of the section 300 petition establishing jurisdiction over Cruz, and in denying him reunification services pursuant to section 361.5. We deny the petition.

FACTS AND PROCEDURAL HISTORY

Cruz was born in May 2007. The hospital made an immediate referral to the Department of Children and Family Services (DCFS) because Cruzs mother (mother) was reported to be mentally ill and unable to care for her children.^[2] DCFS had a case file open regarding Cruzs two older siblings, Carolina S., 7, and Peter R., 2.^[3] The two were detained after mother, who suffered from delusions and hallucinations, threatened to harm Peter, as well as their 10-year-old uncle (mothers younger brother). Additionally, father had beaten mother in the past, thereby placing the two older children at risk of harm.^[4]

Cruz was detained at the hospital and later placed with his maternal grandparents, who also had custody of Carolina and Peter. The grandparents were in the process of adopting the two older children after mother and father had failed to reunify with them in the pending case.

At the time of Cruzs detention, fathers whereabouts were unknown. The maternal grandfather had seen him two weeks earlier when he and mother visited the two older children at the grandparents apartment. The maternal grandfather reported that during the visit, an apartment manager observed father using drugs and asked him to leave the premises. Father thereupon exposed himself to the manager and police were summoned. DCFS also determined that father had a substantial criminal record, which included convictions for battery upon a former spouse, possession of controlled substances, and driving under the influence. The maternal grandfather expressed concern for his familys safety when father was present, and asked about the possibility of obtaining a restraining order.

On May 8, 2007, Cruzs detention was approved. DCFS filed a section 300 petition, alleging, with regard to father, that Cruz was at risk of serious physical harm due to fathers history of engaging in domestic violence, within the meaning of section 300, subdivision (a),^[5]and of not being protected due to fathers violent history and substance abuse, within the meaning of section 300, subdivision (b).^[6]The adjudication hearing on that petition did not take place until July 12, 2007. In the interim, father began parenting and domestic violence classes, and enrolled in drug counseling. However, he was only partially compliant with those programs by the date of the hearing. He had also tested positive for drugs once, and missed two other tests.

Based on that evidence, as well as the evidence contained in DCFSs reports regarding fathers criminal record, history of domestic violence, and drug use, the juvenile court sustained the allegations of the section 300 petition in full.^[7] At a continued hearing to decide the case disposition, the juvenile court further denied family reunification services to father on account of his failure to reunify with the two older children, and the father had not made a reasonable effort to treat the problem that led to the removal of the two older children, as provided for in section 361.5, subdivision (b)(10).^[8] Included in evidence taken at that hearing was testimony that since July 12, 2007, father had presented a certificate of completion for parenting classes, but had missed at least one more drug test. A section 366.26 hearing was set for November 11, 2007. This petition followed. It is opposed by DCFS and counsel for Cruz R.

DISCUSSION

In juvenile cases, the power of this court is limited to determining the sufficiency of the evidence, which 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 trial court, and 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.)

Father begins by challenging that part of the jurisdictional order sustaining allegations made under section 300, subdivision (a) that fathers history of domestic violence physically endangers Cruz. He does not challenge the portion of the order finding jurisdiction under section 300, subdivision (b), regarding a risk of failure to protect due to the domestic violence and continued substance abuse. As DCFS points out, because one basis for the courts exercise of jurisdiction necessarily stands, there is no reason for this court to consider whether jurisdiction asserted on another ground might fail. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875-876.)

The record shows that juvenile courts ruling under section 300, subdivision (a) is supported. Jurisdictional orders are reviewed for substantial evidence. (In re Tania S. (1992) 5 Cal.App.4th 728, 733.) There was evidence here that father already had two children removed from his custody on account of his violent behavior. Despite his receipt of reunification services, father had failed to rectify the situation sufficiently to reunify with those children. Just two weeks before Cruz was born, father exhibited his continued aggressiveness in exposing himself to an apartment manager because she challenged his drug use. Father suggests that because the domestic violence he committed occurred prior to Cruzs birth, no reference to that violence may be made to suggest a threat to Cruz. There is, however, no reason to think that fathers unresolved violence, which placed Cruzs siblings at risk, would pose any less of a danger to Cruz. Even after Cruzs birth, fathers behavior caused the maternal grandfather enough concern to consider obtaining a restraining order to protect the family from father. Given such evidence, the juvenile courts ruling was supported by sufficient evidence.^[9]

Father challenges the juvenile courts order denying him reunification services. He acknowledges that section 361.5, subdivision (b)(10) authorizes denial of reunification services when a parent has failed to reunify with a dependent childs siblings. He notes, however, that the subdivision provides an exception for failed parents that make reasonable efforts to alleviate the conditions that led to the earlier removal. ( 361.5, subd. (b)(10).) Father asserts that by enrolling in parenting and domestic violence classes, and undertaking drug counseling, however imperfect his participation, he has exhibited a reasonable effort to eliminate the problems that led to his earlier failure to reunify. The juvenile court, however, did not consider fathers belatedly enrolling in classes to be enough of an effort to eliminate the existent problems. That decision is also reviewed for substantial evidence. (Amber K. v. Superior Court (2006) 146 Cal.App.4th 553, 560.) The evidence that father has yet to meaningfully address his violent history, continues to engage in aggressive behaviors, and has not resolved his drug use, constitutes substantial evidence to support the juvenile courts ruling.

DISPOSITION

The petition for extraordinary relief is denied. This opinion shall become final immediately upon filing. (Cal. Rules of Court, rule 8.264(b)(3).)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Mother is not a party to this petition.

^[3] DCFS also had at least three earlier referrals on record regarding the family.

^[4] Although the section 300 petition containing those allegations is not included in the record, DCFS recited the allegations verbatim in its detention report and notes that they were sustained by the juvenile court on August 31, 2005. The allegations as to father referred to his placing both Carolina and Peter at risk, although only Peter is fathers biological child.

^[5] Section 300, subdivision (a) provides that jurisdiction may be exercised if [t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian. For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child's siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm.

^[6] Section 300, subdivision (b) provides for jurisdiction if [t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left, or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse.

^[7] The juvenile court also took judicial notice of the sustained allegations of the section 300 petition addressing the two older children. (See fn. 4, ante.)

^[8] Section 361.5, subdivision (b)(10), provides that reunification services may be denied upon a finding [t]hat 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 . . . and that, according to the findings of the court, this parent or guardian 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 that parent or guardian.

^[9] Fathers further suggestion that he is no longer involved with mother and so will have no occasion to beat her again is beside the point. The evidence of fathers violence itself would place Cruz at risk. Moreover, the evidence in the record indicates that father is, in fact, continuing his relationship with mother, such as his accompanying her to visit the children and her parents.