Richard C. v. Superior Court

Filed 8/10/07 Richard C. v. Superior Court CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Original proceedings; petition for a writ of mandate/prohibition to challenge an order of the Superior Court of Orange County, Maureen Aplin, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Petition denied.

Lawrence A. Aufill for Petitioner.

No appearance for Respondent.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen, and Paula A. Whaley, Deputy County Counsel for Real Party in Interest.

Law Office of Harold LaFlamme, Harold LaFlamme and Linda ONeil for Minor.

* * *

Petitioner Richard C. (father) seeks writ review of an order denying family reunification services and scheduling a hearing to select and implement an alternative permanent plan for his daughter, Skyler C. Father contends insufficient evidence shows he failed to make reasonable efforts to treat his substance abuse and violence problems, which had led to the prior removal of Skylers older brother. He further contends reunification services would be in Skylers best interests. The record shows otherwise. We deny the petition.

FACTS

The court terminated fathers parental rights over his son, Casino C., in January 2005. It did so due to fathers longstanding substance abuse and domestic violence problems, and despite his participation in reunification services. Father had already been convicted on domestic violence charges and been granted parole. Conditions of fathers parole included completing a batterers treatment program and having no contact with his victim, Shelley F. (mother).

Father made some efforts to correct the problems that led to Casinos removal. He enrolled in substance abuse and batterers treatment programs. He also completed a parenting class.

But father failed to maintain these efforts. He continued to have contact with mother, violating his parole conditions and a tenet of his batterers treatment program. Father failed to complete the batterers treatment program, participating in only 23 weeks of a 52-week program. He also failed to complete the substance abuse treatment program. He tested positive for methamphetamine use in June 2006. His parole was revoked, he was arrested in August 2006, and incarcerated until November 2006.

Mother gave birth to Skyler in late November 2006.[1] Mother indicated father was one of two possible fathers; father soon signed a declaration of paternity. The Orange County Social Services Agency (SSA) placed a hospital hold on Skyler and filed a juvenile dependency petition. (Welf. & Inst. Code,  300, subds. (b), (j).)[2] The court held a detention hearing, after which it vested temporary placement and care of Skyler with SSA.

Meanwhile, father initially made some strides upon his release from prison. He voluntarily enrolled in a sober living home, engaged in periodic drug testing, resumed participation in his batterers treatment program, and visited Skyler twice a week for two hours each visit.

But fathers renewed efforts were short-lived. After about two months, he left the sober living home and moved into an apartment with mother. He also stopped taking drug tests, attending the batterers treatment program, and visiting Skyler.

Father was arrested in March 2007 for violating his parole conditions by having contact with mother and failing to attend his batterers treatment program. Father was returned to custody, where he awaits his scheduled release in December 2007.

Meanwhile, Skyler was placed with nonrelated extended family members, who had previously adopted her half-brother, Noah C. Skyler was healthy, eating and sleeping well. According to the social worker, [t]he foster mother appeared very in-tune to the childs needs. The foster parents indicated interest in adopting Skyler.

Father pleaded no contest to the amended juvenile dependency petition in April 2007. The court found it had jurisdiction over Skyler. It also found father to be the exclusive presumed father.

The court held a contested disposition hearing in May 2007. It admitted into evidence the SSA jurisdiction/disposition report and addendums. It took judicial notice of the petition, various reports, and certain orders filed in Casinos juvenile dependency case. It heard testimony from father, mother, and an SSA social worker.

After the hearing, the court declared Skyler to be a dependent child of the court. ( 300, 360, subd. (d).) It vested custody of Skyler with SSA. ( 361, subds. (c), (d).) It set a hearing to select and implement an alternative permanent plan for Skyler for September 2007. ( 366.26.) The court also determined no reunification services would be offered. ( 361.5, subds. (b)(10), (b)(11).) Father timely petitioned for a writ of mandate reviewing the courts order denying reunification services.

DISCUSSION

Family preservation, with the attendant reunification plan and reunification services, is the first priority in a juvenile dependency case. (In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1787; accord 361.5, subd. (a).) Nonetheless, it may be fruitless to provide reunification services under certain circumstances. (Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 750.)

Section 361.5, subdivision (b), sets forth situations which reflect a legislative assumption that offering services would be an unwise use of governmental resources. (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) These include recidivism situations in which the parent has failed to reunify with a sibling of the child ( 361.5, subd. (b)(10)),[3] or had his or her parental rights over a sibling permanently severed ( 361.5, subd. (b)(11)).[4]

Denying reunification services in recidivism cases is appropriate if the parent . . . has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling. ( 361.5, subds. (b)(10), (b)(11).) A reasonable effort is not synonymous with cure. (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464 (Renee J.).) Rather, it is more likely the Legislature used the adjective reasonable to ensure that lackadaisical or half-hearted efforts would not be deemed adequate . . . . (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 99 (CherylP.).)

We review an order denying reunification services for substantial evidence. (Cheryl P, supra,139 Cal.App.4th at p. 96.) Under this standard of review we examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defer to the lower court on issues of credibility of the evidence and witnesses. [Citation.] We must resolve all conflicts in support of the determination and indulge all legitimate inferences to uphold the courts order. Additionally, we may not substitute our deductions for those of the trier of fact. (In re Albert T. (2006) 144 Cal.App.4th 207, 216 (Albert T.).)

Here, substantial evidence supports the courts order denying reunification services. The order rests on an implied finding that father had failed to make reasonable efforts to treat the problems that led to Casinos removal: substance abuse and domestic violence. ( 361.5, subds. (b)(10), (b)(11).)

Substantial evidence shows father consistently abandoned his preliminary efforts to treat his substance abuse and domestic violence problems. He failed to complete his treatment programs. He stopped regular drug testing, though he conceded he was addicted to methamphetamine. He left his sober living home to live with mother, carelessly increasing his risk of further engaging in substance abuse and domestic violence. His parole was revoked twice because of his inability to maintain steady treatment efforts. While father showed some insight into his problems and sought out treatment, his lackadaisical [and] half-hearted efforts [will] not be deemed adequate . . . . (Cheryl P., supra, 139 Cal.App.4th at p. 99.)

Fathers fleeting efforts negate his heavy reliance on Renee J. and Albert T. In Renee J., supra, 96 Cal.App.4th 1450, the mother made reasonable efforts to treat her substance abuse problem by living successfully in the sober living home, regularly drugtesting [and] attending 12-step meetings. (Id. at p. 1456.) In Albert T., supra, 144 Cal.App.4th 207, the mother made reasonable efforts to treat her domestic violence problem by complet[ing] several court-ordered and Department-supervised programs specifically directed to domestic violence (id. at p. 220) and enroll[ing] in and complet[ing] both parenting classes and individual counseling addressing domestic violence issues. (Id. at p. 221.) Here, in stark contrast, father left his sober living home, stopped regular drug testing, and failed to complete his substance abuse and batterers treatment programs. Fathers failure to make reasonable efforts to treat his problems sufficiently supports denying reunification services pursuant to section 361.5, subdivisions (b)(10) and (b)(11).

Even so, father contends the court erred by failing to find reunification services would nonetheless be in Skylers best interests. (See 361.5, subd. (c) [even when 361.5, subd. (b) applies, court may offer reunification services if in the childs best interest].) We review this determination for an abuse of discretion. (Cheryl P., supra, 139 Cal.App.4th at p. 96, fn. 6.) We see no such abuse. Father has spent most of Skylers short life in prison for violating his parole conditions. He has never lived with her. Even when father was released from prison, he visited Skyler twice a week for only two months before the visits stopped. And father failed to make reasonable efforts to treat his substance abuse and domestic violence treatment problems, as noted above. Meanwhile, Skyler was thriving in the care of her foster parents, who had already adopted her brother, Casino. The court did not abuse its discretion by finding reunification services would not be in Skylers best interests.

DISPOSITION

The petition is denied. In the interests of justice, this decision is final as to this court 10 days after it is filed. (California Rules of Court, rule 8.264(b)(3).)

IKOLA, J.

WE CONCUR:

OLEARY, ACTING P. J.

ARONSON, J.

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[1] Court documents referred to the minor as Baby Girl F. until her name was changed to Skyler C.

[2] All further statutory references are to the Welfare and Institutions Code.

[3] Section 361.5, subdivision (b)(10), provides, Reunification services need not be provided to a parent . . . when the court finds, by clear and convincing evidence . . . [] . . . 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 after the sibling or half-sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) 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.

[4] Section 361.5, subdivision (b)(11), provides, Reunification services need not be provided to a parent . . . when the court finds, by clear and convincing evidence . . . [] . . . that 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 removal of the sibling or half-sibling of that child from the parent.