In re L.B.

Filed 3/7/07 In re L.B. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

The father appeals from an order terminating his parental rights as to his youngest child, L. B. (Welf. & Inst. Code, 366.26.)[1] He cites no error arising out of the section 366.26 hearing. Instead he contends that he was denied fair and adequate reunification services and that the social services agency violated his rights by providing the court with inaccurate information as to his criminal record, and by denying him the opportunity to retake a drug test. These are not issues that can be properly raised in an appeal from an order terminating parental rights. Issues regarding reunification services can be raised only in a petition for an extraordinary writ. ( 366.26, subd. (l).) No such petition was filed in this case. However, since it appears from the record that the father was not properly noticed, under section 366.26, subdivision (l)(3), of his rights to proceed by extraordinary writ, we will consider his claims in this appeal. We find that the courts order denying services was fully supported by the record and we find no reversible errors. We therefore affirm the order terminating parental rights.

BACKGROUND

On October 14, 2004, the Monterey County Department of Social & Employment Services (the Department) filed a petition in juvenile court alleging that the child came within the provisions of section 300, subdivisions (b) [failure to protect], (g) [no provision for support] and (j) [abuse of sibling]. The petition alleged that the mother and father had four children in addition to the newborn child who was the subject of the petition. All of the other four children, the oldest of which was four years old, were the subjects of ongoing dependency proceedings. At the time this petition was filed, the mother was homeless and the father was incarcerated. The petition alleged chronic substance abuse by both the father and the mother, domestic violence between the parents, general neglect of the children, physical abuse of one of the children, and mental health problems of the mother. Both parents had been resistant to the services provided by the Department and other agencies, had not addressed the behavior that had led to the removal of their other four children and had not complied with orders that there be no contact between them because of domestic violence issues. Furthermore, the father had not fulfilled conditions of his probation, including failing to have a drug assessment and not taking a domestic violence class. Family reunification services were terminated as to the four older children on June 11, 2004.[2]

The petition as to the newborn child L.B. summarized the fathers extensive criminal history, including numerous offenses involving alcohol and substance abuse, and also violent offenses, mainly involving the mother of the children. Shortly before this child was born, the parents were involved in an incident of domestic violence. This incident, and two other incidents occurring during the prior two months, resulted in the fathers arrest on charges of burglary, false imprisonment, threats to commit a crime, attempts to dissuade a witness, aggravated assault, contempt of court order and spousal battery. A second amended complaint, filed October 28, 2004, set forth these charges in 13 counts and further alleged that counts 1 through 11 occurred while the father was released on bail, that he had suffered a prior strike conviction in 1996 and had served a prior prison term.[3]

When the child was born, both mother and child tested positive for drugs. The child was detained and the matter was set for jurisdiction and disposition. A family assessment was conducted on November 9, 2004, and November 30, 2004. The examiner wrote that despite his criminal history the father denied that he was a violent person and maintained he had never been violent towards the mother. The examiner concluded father had substance issues, anger management issues, and parenting concerns that would need to be addressed if he were offered services. She found it was questionable whether father would be able to benefit from services and questionable whether he would be able to achieve a healthy relationship with his child.

At the time the social workers report for jurisdiction and disposition was filed on December 14, 2004, parental rights had been terminated as to two of the four older children, and adoption had been approved as the permanent goal as to the other two.[4] The report recommended that the court bypass reunification services as to the mother pursuant to section 361.5, subdivisions (b)(2), (10), and (11), and bypass services to the father pursuant to section 361.5, subdivisions (b)(10), (11), and (13).[5]

Section 361.5 provides that reunification services need not be provided to a parent where reunification services have been terminated as to a sibling or siblings (subd. (b)(10)), where parental rights have been terminated as to a sibling or siblings (subd. (b)(11)), or where the parent has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem within the prior three years (subd. (b)(13)).

The jurisdictional and dispositional hearing was continued several times. An addendum report prepared by the social worker for the hearing on May 13, 2005, contained the same recommendations. The report noted that the child had been placed in a foster home with two of his older siblings and was bonding with the foster mother. The social worker chronicled the parents lack of cooperation throughout the dependencies of their children, their lack of progress with any services, and their failure to take responsibility for their behavior. The social worker found no indications that the parents had made any genuine efforts to alleviate the problems that led to the removal of their children. The father had been incarcerated throughout the youngest childs dependency, and had seen the child only once, in jail. The father continued to deny any violent episodes with the mother and denied any substance abuse.

A contested jurisdiction and disposition hearing was held on May 13, 2005. The mother and father were both present with counsel. The court sustained the petition, denied services as to the father under section 361.5, subdivisions (b)(10) and (13),[6] and set the section 366.26 hearing for September 9, 2005. Neither parent filed a writ petition challenging this order.

The section 366.26 hearing took place on September 30, 2005. The mother and father, who was still in custody, were present with counsel. In lieu of a contested hearing, the court agreed to the fathers request to have the parents submit declarations, by October 6, 2005, stating their issues and objections to the social workers report.

The parents submitted their declarations. The fathers declaration made the following points in response to the Departments section 366.26 report: (1) adoption should be an option only if it were proven that he was permanently unfit as the childs father; (2) the child should not have been placed in a non-relative foster home; (3) the Department was to blame for the childs bond with his foster mother and should have stated that such a bond indicated that the child could form another bond; (4) the sibling exception to termination of parental rights should be applied because the two siblings not placed in the same home as the child would be harmed if not reunited with him; (5) the social workers report incorrectly stated that the parents had been together since 1993, but it was only since 1999; (6) the statement that the child was attached to his foster mother was unfounded since there was no proof that the child would not have thrived in another home; (7) since his criminal conviction was on appeal, termination of his rights could not be based on that conviction; (8) the doctor who had conducted the family assessment in November of 2004 only spoke with him for 15 minutes, and her impressions were false and unfair; and (9) the courts decision to terminate parental rights should be based solely on my ability to care for my child, and on facts, not opinions of my behavior, or circumstances surrounding my arrest.

On October 20, 2005, the court issued a minute order indicating it was accepting into evidence the Departments section 366.26 report and the fathers declaration. The court adopted the recommendations of the Department and terminated parental rights.

ARGUMENT

In an appeal from the termination of parental rights, the issues on appeal are limited. The only questions for the court are whether the child is adoptable and whether any exceptions apply to the termination of rights. ( 366.26, subd. (c).) As noted above, the father did not raise any of these issues.

Instead, he contends that he was denied fair and adequate reunification services. When a court orders a bypass of reunification services under section 361.5 and simultaneously sets a section 366.26 hearing, any challenge to this order must be made under section 366.26, subdivision (l). (See, e.g., Anthony D. v. Superior Court (1998) 63 Cal.App.4th 149, 156.) This section provides that an order setting a section 366.26 hearing is not appealable unless a petition for writ review addressing the issues to be challenged was timely filed, and the petition was either summarily denied or otherwise not decided on its merits. ( 366.26, subd. (l).) Father did not file a petition for writ review challenging the denial of reunification services. Failure to raise these challenges in a timely writ petition precludes subsequent review by appeal from the orders terminating parental rights. ( 366.26, subd. (l)(2).)

However, it appears on this record that the court did not inform the father, who was present in court, of the requirements of filing a petition for an extraordinary writ, as it was required to do under section 366.26, subdivision (l)(2). In such circumstances, the parent is entitled to contest the merits of the reunification order on direct appeal. (In re Athena P. (2002) 103 Cal.App.4th 617, 624-625.)

We note that although the statutes provide that the juvenile court must make findings under section 361.5 by clear and convincing evidence, on review we apply the substantial evidence standard. (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.) Under substantial evidence review, we draw all reasonable inferences from the evidence to support the findings and orders of the juvenile court and review the record in the light most favorable to support the courts determinations. Issues of fact and credibility are the province of the juvenile court. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)

Appellants arguments focus on claims that the Department should have made more effort to provide him with reunification services while he was incarcerated. However, in the cases he relies on (In re Monica C. (1995) 31 Cal.App.4th 296; In re Maria S. (2000) 82 Cal.App.4th 1032; Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158), services had been ordered and provided to the parent and the question was whether services were adequate. Here, however, the court denied reunification services under section 361.5, rather than ordering services. These cases are therefore not controlling.

Section 361.5, subdivision (b) sets forth a number of circumstances in which reunification services can be bypassed. These bypass provisions represent the Legislatures recognition that it may be fruitless to provide reunification services under certain circumstances. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597.) Subdivision (b)(10) of section 361.5 provides reunification services need not be provided if the court finds 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. The court in this case made these findings.

The record shows that services had been terminated as to all four of the fathers other children. Furthermore, the court specifically took notice of our opinion affirming the termination of reunification services as to the fathers other four children. Services were terminated as to these four children in June of 2004. The record shows that over the next few months the father and mother were involved in additional incidents of domestic violence, which eventually led to his arrest shortly before the child who is the subject of the dependency in this case was born. The record thus supports the finding that the father had not subsequently made a reasonable effort to treat the problems that led to removal of the sibling(s) . . . . ( 361.5, subd. (b)(10).)

Similarly the record contains substantial evidence to support the courts finding under section 361.5, subdivision (b)(13), that the father had a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition . . . . The fathers criminal record shows various alcohol-related offenses, and the father conceded at the section 366.26 hearing that he had an alcohol problem. The record further shows that the father did not comply with conditions of probation after being released from jail in January of 2004, in that he did not complete a drug assessment. In addition, neither parent complied with court-ordered services in connection with the dependencies of the four older children.

We conclude that the juvenile court properly found that the father came within the provisions of section 361.5, subdivisions (b)(10) and (13). In addition, substantial evidence supports the juvenile courts determination that it was not in the best interest of the child to provide reunification services to the father. ( 361.5, subd. (c).) Since the child was a newborn when taken from the parents custody, the relevant statute provides that court-ordered services shall not exceed a period of six months from the date the child entered foster care. ( 361.5, subd. (a)(2).) At the time of the hearing where the court denied reunification services, that period had already elapsed. The father was incarcerated during the entire time. Under the circumstances, the juvenile court acted well within its discretion in finding that it was in the childs best interest to provide him with a permanent home as soon as possible, rather than providing the father with services that were unlikely to lead to reunification.

As to appellants other two claims on appeal, that the Departments asserted errors constituted reversible error, we find these claims, even if they had been timely raised, to be unmeritorious. Father contends that the petition and social workers report contained misstatements regarding his criminal record, implying that he had been convicted for child endangerment without any support in the record, and that it included charges that did not result in convictions. Even if there were inaccuracies in the petition and report, however, appellant must demonstrate that any error complained of has resulted in a miscarriage of justice. (Cal. Const., art. VI, 13.) In the context of dependency proceedings, even due process violations have been held subject to the harmless beyond a reasonable doubt standard of prejudice. (See In re Angela C. (2002) 99 Cal.App.4th 389, 394-395.) The error appellant complains of here would clearly be harmless under the circumstances of this case, as there was ample evidence in the record to support the sustaining of the petition.

Appellant further contends that his rights were violated when he was refused an opportunity to be retested after a hair follicle drug test was found positive for cocaine in November of 2004. He requested another test after the results indicated the presence of cocaine. But as the social worker testified, she declined to arrange for a retest because appellant had been incarcerated for so long that any illegal drugs would no longer be detected in his system. As to this issue, the juvenile court noted that although appellants drug test had shown a fairly heavy concentration of cocaine in his system, the rest of his history did not clearly demonstrate a substance abuse problem. However, the court found that clearly he has an extremely serious alcohol problem and has had it for many years. His record shows convictions for drunk in public, driving while intoxicated, and the kind of out of control acts of violence that are consistent with someone whos very angry at his core, and is intoxicated. On this record it appears that the failure to have a sample retested for the presence of drugs had no impact whatsoever on the courts decision in this case.

DISPOSITION

The order terminating parental rights is affirmed.

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Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

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MIHARA, J.

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MCADAMS, J.

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

[2] See our opinion denying the parents writ petitions challenging these orders. (Lawrence B. v. Superior Court (Sept. 20, 2004, H027577) [nonpub. opn.].)

[3] The father was convicted, following a jury trial, on January 14, 2005, of eight of these charges, and was sentenced on May 24, 2005 to a prison term of six years and eight months. In this courts opinion on appeal, filed November 1, 2006, we found instructional error as to the two counts of false imprisonment, and an error in the abstract of judgment, and thus reversed the matter and remanded for limited further proceedings. (People v. Brown (Nov. 1, 2006, H028963)[nonpub. opn.].)

[4] See our opinion in In re S.B. affirming these orders regarding the four older children. (In re S.B. (July 25, 2005, H028428) [nonpub. opn.].)

[5] The mother is not a party to this appeal.

[6] The court also denied services to the mother under section 361.5, subdivision (b)(2), finding that she was suffering from a mental incapacity or disorder. The court did not make a finding under section 361.5, subdivision (b)(11), as to either parent, because the termination of parental rights was still pending on appeal at the time of the hearing.