Robert M. v. Super. Ct.

Filed 5/15/08 Robert M. v. Super. Ct. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Robert M. Padia, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Petition denied.

David Goldstein for Petitioner.

No appearance for Respondent.

Joe S. Rank, County Counsel, and Sophia M. Choi, Deputy County Counsel, for Real Party in Interest.

In this writ petition, Robert M., father of infant Robert M., Jr., challenges an order made at a disposition hearing at which the juvenile court denied reunification services and visitation, and referred the matter for a permanency planning hearing. (Welf. & Inst. Code,^[1] 366.26.)

BACKGROUND

Robert M., Jr., was born in August 2007. In September 2007, his mother, who is not a party to this writ proceeding, sought medical attention for the baby when she noticed blood in his vomit. They were referred to Loma Linda University Medical Center where it was discovered that the infant had sustained multiple rib fractures, that were in various stages of healing, a fractured clavicle, a torn frenulum (tissue connecting the lip to the gum), and a burn area on the palate. The child was detained in the hospital and both parents were arrested for willful cruelty to a child. During an interview with police, father admitted he shook the baby because he would not stop crying. The doctor stated the varied stages of healing of several of the fractures indicated multiple incidents of abuse.

The Department of Public Social Services (DPSS) filed a juvenile dependency petition on September 21, 2007, alleging Robert, Jr. had been subjected to serious physical harm (300, subd. (a)), failure to protect or supervise ( 300, subd. (b)), severe physical abuse ( 300, subd. (e)), lack of provision for support due to the parents incarceration ( 300, subd. (g)), and abuse of a sibling.^[2] ( 300, subd. (j).) Robert, Jr., and his two older half-siblings, A.A. and B.A., were detained pending the jurisdictional hearing. Visits were ordered, as were reunification services, pending further hearing.

During the interim between the detention hearing and the jurisdiction hearing, both parents availed themselves of services by attending parent education classes and visiting Robert, Jr. At the jurisdiction hearing, the juvenile court struck the allegations of lack of provision for support ( 300, subd. (g)), along with the allegations of neglect against David A., the father of the two older half-siblings of Robert, Jr. The court dismissed the petition as to the older half-siblings but made a true finding as to all allegations pertaining to Robert, Jr.

Pending the disposition hearing, the parents continued to participate in services; father had completed the first phase of parent education and was moving into the next phase of Family Relationships. Father missed some visits due to car problems, but attended when he was able and interacted well with Robert, Jr. On March 4, 2008, the date of the disposition hearing, the court declared Robert, Jr. to be a dependent of the court, finding that he came within the provisions of section 300, subdivisions (a) (serious physical harm), (b) (neglect/failure to protect), (e) (severe physical abuse), and (g) (no provision for support). Custody was removed from both parents, and no services were ordered upon the courts determination that the extent of progress by the parents was unsatisfactory. The court also terminated visitation rights finding that visitation was detrimental based on the injuries inflicted on Robert, Jr. and the mothers failure to protect him. The court ordered a permanency planning hearing for Robert, Jr.

Father timely filed a notice of intent to file a writ petition.

DISCUSSION

Father challenges the denial of reunification services and the termination of visits. Before we reach those issues, however, we note that the juvenile court erroneously included, as a ground for dependency jurisdiction, the lack of provision for support ( 300, subd. (g)), a ground which had been stricken following the jurisdiction hearing. We direct the juvenile court to correct its minutes to delete that ground.

A. Denial of Reunification Services.

Father argues that his compliance with the case plan, cooperation with DPSS, and the quality of his visits with Robert, Jr. should have been taken into consideration before denying him family reunification services. A court reviews an order denying reunification services under section 361.5, subdivision (b) for substantial evidence. (Cheryl P. v. Superior Court (2006)139 Cal.App.4th 87, 95-96.) We affirm an order denying reunification services if the order is supported by substantial evidence. (Amber K. v. Superior Court (2006) 146 Cal.App.4th 553, 560.) We have no power to judge the effect or value of the evidence, to weigh the evidence or to consider the credibility of witnesses. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.)

There is a presumption in dependency cases that parents will receive reunification services. (Riverside County Dept. of Public Social Services v. Superior Court (1999) 71 Cal.App.4th 483, 487.) Section 361.5, subdivision (a) directs the juvenile court to order services whenever a child is removed from the custody of his or her parent unless the case is within the enumerated exceptions in section 361.5, subdivision (b). (Rosa S. v. Superior Court (2002) 100 Cal.App.4th 1181, 1188, 122 Cal.Rptr.2d 866.) Section 361.5, subdivision (b)(5) provides that reunification services need not be provided to a parent or guardian when the court finds, by clear and convincing evidence, that the child was brought within the jurisdiction of the court under subdivision (e) of section 300 because of the conduct of that parent or guardian.

Once a juvenile court finds that section 361.5, subdivision (b)(5) applies, it may not offer family reunification services unless it finds, by clear and convincing evidence, that reunification is in the best interests of the minor. ( 361.5, subd. (c); Pablo S., Sr. v. Superior Court (2002) 98 Cal.App.4th 292, 301.) In addition, the court shall not order reunification in any situation described in paragraph (5) of subdivision (b) unless it finds that, based on competent testimony, those services are likely to prevent reabuse or continued neglect of the child or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent. ( 361.5, subd. (c).)

There is substantial evidence to support the trial courts denial of reunification services to father. Robert, Jr. was found to be a dependent on the basis of severe physical abuse, bringing his situation within section 361.5, subdivisions (b)(5) and (c). There was no competent evidence that reunification services were likely to prevent reabuse or that failure to try reunification would be detrimental to the child, because there was no evidence of a close, positive attachment between Robert, Jr. and father.

The court properly considered evidence of fathers participation in court ordered services, his cooperation with DPSS, and the quality of his visitation, which were documented in the reports submitted at the hearing before making it ruling. It reasonably concluded that fathers participation in services was unsatisfactory in alleviating or mitigating the causes of the dependency given the multiplicity of incidents of abuse as reflected by the number of fractures in different stages of healing. Parenting classes were not shown to prevent reabuse of this type. There was substantial evidence to support the courts denial of reunification services.

B. Denial of Visitation.

Father contends the court abused its discretion in denying him visitation pending the permanency planning hearing. We disagree.

Visitation is considered an essential component of a reunification plan. (In re Mark L. (2001) 94 Cal.App.4th 573, 580.) In order to maintain ties between the parent and the child, visitation shall be ordered, as frequently as possible, consistent with the well-being of the child. ( 362.1, subd. (a)(1)(A).) For parents who have been provided a plan for reunification, denial or termination of visits requires a finding that visits are detrimental to the child. (In re Luke L. (1996) 44 Cal.App.4th 670, 679.)

However, where reunification services are denied, visitation is governed by section 361.5, subdivision (f), which provides in relevant part that [t]he court may continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child. Visitation is not integral to the overall plan when the parent is not participating in reunification efforts, so the juvenile court has discretion to permit or deny visitation when reunification services are not ordered, unless it finds visitation would be detrimental to the child, in which case it must deny visitation. (In re J.N. (2006) 138 Cal.App.4th 450, 458-459.)

For this reason, we review the juvenile courts order denying visitation under section 361.5, subdivision (f), for abuse of discretion. (In re J.N., supra, 138 Cal.App.4th at p. 459.) The test for whether the juvenile court abused its discretion is whether the trial court exceeded the bounds of reason, and this standard warrants application of a very high degree of deference to the decision of the juvenile court. (Ibid.)

Robert, Jr. is an infant and there was no evidence presented at the hearing that he had formed a relationship with father, or that visitation would benefit Robert, Jr., who is too young to appreciate a visit. The trial court found visitation would be detrimental based on the injuries inflicted on Robert, Jr. by father, and the mothers failure to protect him. No contrary showing was made. Father has not met his burden of showing that the trial courts finding exceeded the bounds of reason.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Richli

Acting P. J.

s/Miller

J.

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

^[2] The abuse of a sibling ( 300, subd. (j)) allegation pertained to mothers two older children, A.A., and B.A., from a prior relationship with David A. The father of those children was awarded physical custody and the petition as to them was dismissed upon the issuance of exit orders to the Family Court.