Orlando B. v. Sup. Ct.

Filed 6/20/07 Orlando B. v. Sup. Ct. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Nancy B. Williamsen, Commissioner.

Maria E. Ramos, for Petitioner.

No appearance for Respondent.

Michael H. Krausnick, County Counsel, and Linda S. Macy, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) to vacate the dispositional orders of the juvenile court denying him reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1]as to his daughter D. We will grant the petition.

STATEMENT OF THE CASE AND FACTS

Newborn D. came to the attention of the Stanislaus County Community Services Agency (agency) in February 2007 when she and her mother Amanda,^[2]petitioners girlfriend, tested positive for opiates and amphetamines. Amanda has a long history of heroin and methamphetamine use and D. was not the first of Amandas children to be born with a positive toxicology. In June 2004, Amanda gave birth to her third child, a son A.,^[3]who also tested positive for opiates and amphetamines. A. was taken into protective custody by the agency and adjudged a dependent of the juvenile court.

The circumstances of A.s removal as well as the outcome of A.s dependency proceedings and subsequent events directly impact the findings and orders petitioner now challenges. Consequently, they will be set forth in this opinion to the extent they are relevant.

At the time of A.s detention in July 2004, petitioner was incarcerated in a mens honor farm having been convicted in January 2004 for possession of a controlled substance. Amanda identified him as A.s alleged father. The agency filed a dependency petition, alleging A. should be brought under juvenile court jurisdiction pursuant to section 300, subdivisions (b) (subdivision (b)) and (g) (subdivision (g)). Six of the seven subdivision (b) counts concerned Amanda and her drug use. The seventh and only subdivision (b) count pertaining to petitioner stated that he was convicted in January 2004 of possession of a controlled substance. Of the three counts under subdivision (g), two addressed petitioner. One stated that he was an alleged father of A. and had not established his paternity. The other stated that he was being held in the mens honor farm and was unable to provide care and support for A.

At the detention hearing in July 2004, the juvenile court ordered petitioner to undergo paternity testing, which would not be scheduled for many months to come. Meanwhile, at the dispositional hearing in August, the court denied petitioner reunification services because, as A.s alleged father, he was not entitled to them under section 361.5, subdivision (a). Amanda, on the other hand, was provided six months of services.

By late September 2004, petitioner was out of custody and living in his mothers home with Amanda. In February 2005, at a contested six-month review hearing, the court terminated Amandas reunification services for noncompliance and set a section 366.26 permanency planning hearing. Meanwhile, petitioner was scheduled for paternity testing in February and March 2005 but failed to keep the appointments. At the section 366.26 hearing in May 2005, the court terminated petitioner and Amandas parental rights and freed A. for adoption.

After D. was born, petitioner signed a voluntary declaration of paternity at the hospital. Consequently the agency treated petitioner as D.s presumed father and considered placing D. with him but elected not to do so for sound reasons. At 27 years of age, petitioner had never lived independently from his mother or supported himself financially. Though he was never diagnosed with a mental disability nor was he receiving social security benefits or disability-related services, his mother described him as slow and the social worker suspected he was developmentally delayed. Consequently, there was serious doubt as to whether he could parent a child.

Moreover, although petitioner denied using drugs at the time of D.s detention, his criminal history includes arrests in April 2003, January 2004, February 2005 and October 2006 for drug-related charges and convictions in January 2004 for drug possession and in February 2005 for possession of drug paraphernalia. Further, there was significant drug activity occurring in the home. Amanda was using drugs although petitioner denied knowing it. In addition, petitioners two adult brothers also lived in the home and, according to an adult probation officer, all of the residents were either gang-affiliated, had drug ties or were on probation for one reason or another. Their collective convictions and offenses included drug offenses, domestic violence, child endangerment and child sexual abuse.

In March 2007, following its investigation, the agency filed a dependency petition seeking D.s removal based on allegations under subdivision (b) that petitioner and Amanda failed to protect D. and under section 300, subdivision (j) that their parental rights as to A. had been terminated. To support its subdivision (b) allegations concerning petitioner, the agency cited the unsuitability of petitioners living arrangements and his January 2004 drug possession conviction. The agency also alleged that he was convicted in October 2006 on a felony drug possession charge.

The juvenile court detained D. pursuant to the petition and set a combined jurisdiction/dispositional hearing. Immediately following the detention hearing, the social worker met with both parents and referred them for substance abuse evaluations. The social worker also emphasized the importance of immediately participating in services to increase their chances of reunifying. However, neither parent heeded the advice. At the end of March 2007, Amanda was arrested for possession of heroin and petitioner never scheduled himself for a substance abuse evaluation.

In light of petitioner and Amandas failure to make lifestyle changes, the agency concluded neither could be entrusted with the care of a young child and recommended the court deny both parents reunification services; specifically, petitioner was denied reunification services under section 361.5, subdivision (b)(11). The agencys rationale was that petitioners parental rights to A. had been terminated, he continued to use drugs and he could not provide a safe home. As evidence of petitioners drug use, the agency cited his January 2004 drug conviction, his October 2006 drug arrest and his failure to submit to a substance abuse evaluation. Further, the agency questioned whether petitioner possessed the resolve to protect D. from Amandas drug use.

On April 24, 2007, the court conducted a combined contested jurisdiction/dispositional hearing at which petitioner and Amanda appeared through counsel. Counsel agreed to several modifications to the petition, one of which changed the subdivision (b) allegation that petitioner was convicted in October 2006 of felony drug possession to state that Amanda was convicted of felony drug possession. No evidence was taken or argument heard and the court found the allegations true as amended and adjudged D. a dependent child under subdivisions (b) and (j).

During the dispositional phase of the hearing, petitioners trial counsel argued that section 361.5, subdivision (b)(11) did not apply to petitioner because he was merely A.s alleged father. Counsel also argued that petitioner remedied the problem necessitating A.s removal because he was no longer incarcerated. Therefore, he was available for services and should receive them.

Following argument, the court adopted the agencys recommendations, denied both parents reunification services as recommended and set a section 366.26 hearing. This petition ensued.

DISCUSSION

Petitioner argues the court erred in denying him reunification services under section 361.5, subdivision (b)(11). We agree.

When the juvenile court removes a child from a parents custody, section 361.5, subdivision (a) (subdivision (a)) requires the court to provide reunification services to the childs statutorily presumed father unless the court finds he falls under any of 15 exceptions enumerated in section 361.5, subdivision (b). Subdivision (b)(11) of section 361.5 provides:

(b) Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, [] [] (11) [t]hat the parental rights of a parent over any sibling or half-sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to the removal of the child or half-sibling of the child from the parent. We review the denial of reunification services under section 361.5, subdivision (b) for substantial evidence. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600 (Francisco G.).)

Petitioner argues neither prong of subdivision (b)(11) pertains to him because, as A.s alleged father, he is not a parent described in subdivision (a) and he remedied the circumstances that necessitated A.s removal. Real party in interest contends, citing the authority of Francisco G., the parent described in subdivision (a) includes an alleged father whose parental rights to a sibling or half-sibling have been previously terminated. (Francisco G., supra, 91 Cal.App.4th at p. 599.)^[4] Assuming, without deciding, that such is the case, we nevertheless conclude substantial evidence does not support the courts finding petitioner failed to remedy the problems that required A.s removal.

A. was removed from petitioners custody after the court sustained allegations petitioner was convicted in January 2004 of possession of a controlled substance, he was A.s alleged father and he was incarcerated and unable to provide support. As petitioner correctly pointed out at trial, he could not change the fact of his conviction. He could only change the fact of his illegal drug use and remain out of custody. Though it appears petitioner was convicted in February 2005 for possession of drug paraphernalia, the conviction occurred before his parental rights to A. were terminated in August 2005 and, according to the appellate record, petitioners only subsequent arrest, which occurred in October 2006, was dismissed. Further, because petitioner did not submit to drug testing, there is no way to know whether or not he would have tested positive. Therefore, there is no evidence that he was abusing drugs and the agency admitted as much in its reports.

What this case boils down to is the agencys suspicion that petitioner was using drugs based on his prior criminal history as well as the drug activity of his family and girlfriend. However, while the evidence may be very suggestive of petitioners drug use, it is an insufficient basis upon which to deny him services under subdivision (b)(11). We conclude, based on petitioners out-of-custody status and apparent sobriety, that he remedied the problems that necessitated A.s removal and resulted in his loss of parental rights. Further, in the absence of an exception under section 361.5, subdivision (b), we also conclude that petitioner, as D.s presumed father, was entitled to reunification services. Consequently, we will grant the petition.

DISPOSITION

Let an extraordinary writ issue directing respondent court to vacate its order of April 24, 2007, denying petitioner reunification services under section 361.5, subdivision (b)(11) and setting the section 366.26 hearing. Respondent court is further directed to conduct a new dispositional hearing and, absent a showing that petitioner is described by any other subpart of section 361.5, subdivision (b), enter an order for six months of reunification services. This opinion is final forthwith as to this court.

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^*Before Vartabedian, Acting P.J., Harris, J., and Gomes, J.

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

^[2] Amanda did not file a writ petition from these proceedings.

^[3] Amandas other two children, both minors, were living with their father in another state.

^[4] When Francisco G. was adjudicated, the language now contained in subdivision (b)(11) was set forth in section 361.5, subdivision (b)(10)(B). In 2001, subdivision (b)(10)(B) was designated subdivision (b)(11) without substantive change. (Stats. 2001, ch. 653,  11.3, p. 4132.)