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In Re Allison J., A Person Coming Under the v. Defendant and Appellant

December 10, 2010

IN RE ALLISON J., A PERSON COMING UNDER THE JUVENILE COURT LAW. SAN FRANCISCO HUMAN SERVICES
AGENCY, PLAINTIFF AND RESPONDENT
v.
DEFENDANT AND APPELLANT



City & County , of San Francisco Super. Ct. No. JD093238

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

CERTIFIED FOR PUBLICATION

The juvenile court denied Jeremiah J. (father) reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(12) (section 361.5(b)(12)), which allows a court to bypass reunification services where a parent has committed a "violent felony" within the meaning of Penal Code section 667.5, subdivision (c).*fn1 On appeal, father contends section 361.5(b)(12) is "unconstitutional because it does not require a nexus between the criminal conduct and the ability to parent." Specifically, father contends section 361.5(b)(12) violates his substantive due process rights.

We affirm. We conclude section 361.5(b)(12) satisfies the requirements of substantive due process when considered in connection with section 361.5, subdivision (c).

FACTUAL AND PROCEDURAL BACKGROUND

Allison J. was born in November 2008. In August 2009, the San Francisco Human Services Agency (Agency) filed a section 300 petition alleging mother's mental health and substance abuse problems prevented her from caring for Allison. The petition also alleged father was a registered sex offender who had a criminal record and who could not protect Allison from mother. (§ 300, subds. (b), (g).) In an amended petition filed in September 2009, the Agency alleged mother and father engaged in domestic violence in violation of a restraining order requiring father to stay away from mother. The court detained Allison.

In its disposition report, the Agency reported that father was a registered sex offender "due to fondling a minor who was mentally delayed" when father lived in Florida. According to the report, father had been convicted of possession of a controlled substance and possession of a controlled substance for sale in 2000 (Health & Saf. Code, §§ 11377, 11379) and second degree robbery in 2005 and again in 2006 (Pen. Code, §§ 211, 212.5). The report indicated that father admitted he used methamphetamine until "the Lord Jesus saved him" but "denie[d] all of the allegations." The Agency noted father was living in a homeless shelter and was on parole until October 2010 for robbery. One restriction of father's parole prohibited him from having "contact with any minors" except supervised contact with Allison.

In an addendum report, the Agency recommended that the court bypass reunification services for father pursuant to section 361.5(b)(12) because of father's robbery convictions and because of his "extensive criminal history dating back to 1997, when he was required to register as a sex offender." The addendum report noted father had various misdemeanor convictions for cruelty to animals (Pen. Code, § 597), burglary (Pen. Code, § 459) and forgery (Pen. Code, § 470) and attached proof of father's prior convictions.

The court held a contested jurisdiction and disposition hearing on February 18, 2010. The court determined Allison came within the provisions of section 300. During the disposition portion of the hearing, Allison's social worker, Larissa Rostran-Navarro, testified she recommended the court not provide reunification services for father because the Agency was concerned "about his violent pattern with his criminal behavior, and also [about] the history of domestic violence" between mother and father. When Rostran-Navarro discussed her concerns with father, he was "evasive" and said, "'I already dealt with that with my attorney and all of that is not true.'" Father also blamed his roommate for the death of the cat that led to his animal cruelty conviction.

Rostran-Navarro explained that she was concerned about Allison's safety if father "does not get treatment and does not acknowledge that he had a DV situation. . . . [T]he mother reported to me that when she was pregnant the father pushed her down and she fell over on the floor. [¶] Also, she's reported that after she had the baby, [she and father] lived together for some time, and she was asking him for money for provisions for the baby . . . and he became so frustrated and upset that he grabbed a piece of paper and pushed it down her mouth to quiet her down. [¶] So my concern is lack of accepting, taking responsibility for his behavior." Rostran-Navarro stated father admitted he regularly violated the restraining order prohibiting him from contacting mother but failed to acknowledge it was a "problem" that he assaulted a developmentally delayed child in Florida.

According to Rostran-Navarro, Allison would not do well without appropriate parenting because she has "special needs" and is "developmentally delayed." Finally, Rostran-Navarro testified that father was loving toward Allison, appeared concerned about her welfare during supervised visits, and had been attending parenting classes and family therapy.

At the conclusion of the hearing, the commissioner followed the Agency's recommendation and declined to provide reunification services for father pursuant to section 361.5(b)(12). The commissioner found clear and convincing evidence there was a substantial danger to Allison's safety and well-being if she were returned home. The commissioner explained she was concerned about the "seriousness" of father's convictions, about father's lack of insight regarding the convictions, and about his "unwillingness to even discuss his part in those convictions." The commissioner commended father for having "good visits with [his] daughter," but noted that "having good visits . . . and being a good parent [are] far different."

Father filed an application for rehearing. The presiding judge denied the application, explaining that the Agency had established "beyond a reasonable doubt" that father had committed a violent felony within the meaning of Penal Code section 667.5, subdivision (c). The judge rejected father's argument that "there ought to be a nexus between the crime and the care of the child" and concluded the commissioner did not abuse her ...


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