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In re DANIEL R., a Person Coming Under the Juvenile Court Law. v. HOLLY A

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA


November 30, 2010

IN RE DANIEL R., A PERSON COMING UNDER THE JUVENILE COURT LAW. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
HOLLY A., DEFENDANT AND APPELLANT.

APPEAL from an order of the Superior Court of San Diego County, Yvonne E. Campos, Judge. Affirmed. (Super. Ct. No. J515681E)

The opinion of the court was delivered by: Aaron, J.

In reDaniel R.

CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Holly A. appeals an order of the juvenile court denying reunification services and setting a hearing under Welfare and Institutions Code*fn1 section 366.26. She contends that the court erred by not ordering reunification services for her under section 361.5, subdivision (b)(10), because the evidence showed that she had made reasonable efforts to address the problems that led to removal of her three older children, and that reunification was in Daniel's best interests. We affirm the court's order.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2010 the San Diego County Health and Human Services Agency (the Agency) filed a petition on behalf of seven-month-old Daniel. The petition alleged that Daniel's parents had exposed him to domestic violence in the family home. During one incident, Holly struck Daniel's father, Daniel Sr.,*fn2 injuring his face. During another altercation, Father acted as the aggressor when he pushed Holly to the ground.

The Agency filed a detention report in April 2010. The report summarized Holly's history with child welfare services. In January 2005 the Agency removed Holly's three eldest children, Lorena O., Alicia A., and Vanessa A., from Holly's care due to exposure to domestic violence and Holly's ongoing substance abuse.*fn3 Holly received more than a year of services to attempt to reunify with these three children. However, she failed to make substantive progress with her case plan, and services were terminated. The children were freed for adoption.

In January 2009 the Agency filed a petition on behalf of Adrian A., a fourth half sibling of Daniel. The petition in Adrian's case alleged that Adrian had been exposed to domestic violence in the home, between Holly and Father. Father pushed Holly and hit her in the head. He then broke a car window with a rock while Adrian was in the car.

The Agency social worker reported that Holly received many services during the prior dependency proceedings involving her three eldest children. Specifically, Holly received 18 months of services in the dependencies of Lorena, Alicia and Vanessa, another 14 months of services in Adrian's case, and at the time of Daniel's detention hearing, she was still receiving services for Adrian. Holly had applied for temporary restraining orders against Father, but did not enforce them. Holly also continued to have contact with the father of her other children.

Concerning the instant case, the Agency reported that Holly engaged in two domestic violence altercations between February and April 2010. In February 2010 Holly threw a beer can at Father and punched him in the face. Law enforcement officers arrested Holly in that incident. In March 2010 Father and Holly got into a fight during which Father pushed Holly to the ground. The social worker believed that these incidents demonstrated that Holly was not benefitting from services, and that more intervention was needed.

On April 6, 2010, the court held a detention hearing and detained Daniel in out-of-home care. The court issued a mutual restraining order and ordered that visits with Daniel be supervised.

The Agency submitted a jurisdiction and disposition report in April 2010. The social worker recommended that Daniel be declared a dependent and placed in relative care. The social worker further recommended that the court deny reunification services to Holly. In support of this recommendation, the social worker cited Holly's lengthy history with child welfare services and the fact that she had participated in more than a year of services. Despite having participated in these services, Holly continued to engage in violent altercations. Further, she continued to be untruthful regarding her relationship with Father, and she did not have insight into how her lifestyle choices would be detrimental to Daniel. The social worker did not believe that Holly was able to apply the information that she learned in anger management courses or domestic violence counseling to assist her in refraining from engaging in violent relationships.

The Agency filed an addendum report in May 2010. The report summarized the services that Holly had received during the course of Adrian's dependency. She participated in substance abuse treatment, drug testing and 12-step drug rehabilitation meetings. Holly completed domestic violence counseling but continued to remain in contact with Father. Holly also participated in therapy sessions. Her therapist reported that Holly's progress was marginal because Holly had not been forthcoming about her relationship with Father.

In June 2010 the court held a jurisdiction and disposition hearing. The court heard testimony from social worker Kyle Leonard and from Andrew Pickering, Holly's therapist. The court also received in evidence the Agency's reports. Leonard had been assigned to Adrian's case about one year prior to the hearing. Leonard testified that Holly had an extensive domestic violence history. Holly participated in domestic violence counseling, individual therapy and drug treatment. However, she continued to engage in violent behavior. She violated "no contact" orders and participated in two acts of domestic violence despite the extensive services that she had received. Leonard did not believe that Holly had changed, and expressed the view that Holly had not been able to implement the skills that she had learned in services.

Pickering testified that he began his sessions with Holly in late February 2009. The main treatment goals that he addressed with Holly were to understand the cycle of violence, how to manage emotions and to work on some of the dynamics of domestic violence.

Holly disclosed the February 2010 domestic violence incident to Pickering soon after it occurred. Pickering stated that Holly did take some responsibility for the incident when she commented that she could have turned around and walked away from the situation. Pickering admitted that Holly's course of treatment was made more complex by the fact that Holly has been both the perpetrator and the victim of domestice violence in various relationships.

After considering the evidence presented at trial, the court sustained the petitions, declared Daniel a dependent and ordered him placed in the home of a relative. The court denied reunification services to Holly under section 361.5, subdivision (b)(10). Holly timely filed a notice of appeal.

DISCUSSION

I.

Denial of Reunification Services Pursuant to Section 361.5, Subdivision (b)(10)

Holly contends that the evidence is insufficient to support the court's order denying her reunification services under section 361.5, subdivision (b)(10). She asserts that she made reasonable efforts to address the problems that led to the removal of Daniel's half siblings. She further asserts that Daniel's best interests would be served by providing her with services.

A. Relevant law

Pursuant to section 361.5, subdivision (a), "[w]hen a child is removed from the custody of his parents, reunification services must be offered to the parents unless one of several statutory exceptions applies." (In re William B. (2008) 163 Cal.App.4th 1220, 1227.) However, the juvenile court need not provide a parent reunification services if it finds, by clear and convincing evidence, that any of the exceptions set forth in section 361.5, subdivision (b) apply. (§ 361.5, subd. (b).) " 'Once it is determined one of the situations outlined in [section 361.5,] subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citation.]' " (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744.)

Section 361.5, subdivision (b)(10), authorizes the denial of services based on a parent's previous failure to rehabilitate. Section 361.5, subdivision (b)(10), provides in pertinent part:

"(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, any of the following: [¶] . . . [¶]

"(10) That the court ordered termination of reunification services for any siblings . . . of the child because the parent or guardian failed to reunify with the sibling . . . after the sibling . . . had been removed from that parent or guardian . . . 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 the removal of the sibling . . . ."

We affirm an order denying reunification services if there is substantial evidence to support the order. (Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 474.) "In making this determination, we must decide if the evidence is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the court's order was proper based on clear and convincing evidence. [Citation.]" (Ibid.; Amber K. v. Superior Court (2006) 146 Cal.App.4th 553, 560.) The party challenging the ruling of the trial court has the burden to show that the evidence is insufficient to support the ruling. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

B. Analysis

1. There Is Substantial Evidence to Support the Trial Court's Denial of Services Under Section 361.5, Subdivision (b)(10)

Holly does not dispute that the first prong of section 361.5, subdivision (b)(10), was established--i.e., that the court previously terminated reunification services for Daniel's half siblings after Holly failed to reunify with the siblings. The remaining issue is whether there is sufficient evidence to support the court's finding that Holly had not made a reasonable effort to treat the problems that led to the removal of the minors' siblings from her care, under the second prong of section 361.5, subdivision (b)(10).

The trial court denied reunification services for Holly after finding, by clear and convincing evidence, that the exception under section 361.5, subdivision (b)(10) applied. Holly asserts that the court erred by denying her reunification services because the record shows that she made reasonable efforts to treat the domestic violence problems that led to the removal of Daniel's siblings. She notes that she participated in many services to address the domestic violence issues and maintains that although she has made mistakes, she has continued to participate in treatment and is willing to complete her case plan.

While Holly has participated in many services during the course of prior dependency proceedings, based on the evidence in the record, the court could reasonably have concluded that she did not make reasonable efforts to treat her long history of domestic violence problems that led to the siblings' removal. Daniel's siblings were removed from Holly's care due to acts of domestic violence. Her violent behavior went back many years, and occurred with several different domestic partners. In some instances, Holly was the perpetrator. Holly participated in approximately 18 months of services, including domestic violence treatment, while attempting to reunify with Lorena, Alicia and Vanessa, yet failed to regain custody of them. She received an additional 17 months of services to attempt to reunify with Adrian, but was again unsuccessful.

Despite having received many months of services, Holly continued to engage in violent confrontations. The last two incidents that occurred in February and April 2010 took place just months after she had completed a parenting class, a domestic violence program and an anger management program.

Holly asserts that the fact that she participated in, and completed, many services shows that she made reasonable efforts to treat the issues that led to the removal of Daniel's siblings. We disagree. Although Holly participated in services, she continues to struggle with domestic violence. She has been unable or unwilling to apply what she learned, or to understand the risks associated with a violent lifestyle, even after months of services. There is sufficient evidence from which the court could have concluded that Holly had not made reasonable efforts to treat her problems. There is thus substantial evidence to support the court's denial of services under section 361.5, subdivision (b)(10).

II.

A. Denying services to Holly was in Daniel's best interests

Holly argues that the juvenile court abused its discretion by denying her reunification services under section 361.5, subdivision (b)(10) because reunification is in Daniel's best interests.

1. Relevant Law and Standard of Review

Under section 361.5, subdivision (c), the juvenile court "shall not order reunification for a parent" described in, inter alia, section 361.5, subdivision (b)(10) "unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c); In re Ethan N. (2004) 122 Cal.App.4th 55, 64 ["Once the juvenile court finds that one or more of these subparts of [section 361.5,] subdivision (b) applies, the court is prohibited from ordering reunification services unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child"].) "The burden is on the parent to change that assumption and show that reunification would serve the best interests of the child." (In re William B., supra, 163 Cal.App.4th at p. 1227.)

Serving the best interests of the child is the fundamental goal of the juvenile dependency system, and underlies the three primary goals of child safety, family preservation, and timely permanency and stability. (Seiser & Kumli, California Juvenile Courts (2008) § 2.11, p. 2-22.) "The concept of a child's best interest 'is an elusive guideline that belies rigid definition. Its purpose is to maximize a child's opportunity to develop into a stable, well-adjusted adult.' [Citation.]" (In re Ethan N., supra, 122 Cal.App.4th at p. 66.)

We review the juvenile court's refusal to order reunification services under section 361.5, subdivision (c), for an abuse of discretion. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96, fn. 6; In re Angelique C. (2003) 113 Cal.App.4th 509, 523-524.)

2. The Court Did Not Abuse Its Discretion In Concluding That Reunification Would Not Be In Daniel's Best Interests.

The juvenile court found that Holly did not demonstrate that she had made a reasonable effort to treat the problems that led to the removal of Daniel's siblings. She has been through two prior dependency proceedings involving four other children. Despite having completed many services over the course of 35 months, Holly quickly resumed engaging in domestic violence. Based on Holly's lengthy history with child welfare services, the court saw little hope that additional services would be beneficial. In the interim, Daniel has been placed with a relative caregiver in the same home as his half sibling, Adrian. The court could reasonably have concluded that providing Holly with additional reunification services would not be in Daniel's best interests, in view of the stability and continuity that Daniel would receive with his relative caregivers and sibling. "The best interests of [a] child are not served by merely postponing his chance for stability and continuity and subjecting him to another failed placement with the parent." (In re William B., supra, 163 Cal.App.4th at p. 1229.)

DISPOSITION

The order is affirmed.

WE CONCUR: NARES, Acting P. J. McINTYRE, J.


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