IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR
December 21, 2010
DAN C., PETITIONER,
THE SUPERIOR COURT OF HUMBOLDT COUNTY, RESPONDENT; HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, REAL PARTY IN INTEREST.
(Humboldt County Super. Ct. No. JV100114)
The opinion of the court was delivered by: Reardon, Acting P.J.
Dan C. v. Super. Ct. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Petitioner Dan C. is the father of Danielle M. and other children. Petitioner has filed a petition challenging the setting of a hearing under Welfare and Institutions Code*fn1 section 366.26 in Danielle's dependency. (Cal. Rules of Court, rule 8.452.) We deny relief.
Dependency proceedings on behalf of Danielle M., born in August 2008, commenced in August 2010 with the filing of a petition under section 300, subdivisions (b), (g) and (j). The failure to protect allegations under section 300, subdivision (b), pertained to the mother, Michelle M. (mother), only. The no provision for support allegations under section 300, subdivision (g) stated that Danielle's parents were incarcerated and/or institutionalized and could not arrange for her care. Mother was arrested on July 29, 2010, for possession and sale of narcotics and cruelty to a child. Petitioner was institutionalized at a state hospital. Additionally, the abuse of sibling allegations (§ 300, subd. (j)) stated that between February 2002 and June 2009, four of the minor's siblings had been placed for adoption due to the parents' inability or unwillingness to reunify with them. Finally, mother and petitioner "have continued to fail to address the issues which lead to the removal and subsequent adoption of their other children," placing Danielle at substantial risk of abuse or neglect.
The juvenile court sustained the petition as to each allegation.
The disposition report documented petitioner's extensive criminal history and included police reports from 2008 and 2009 implicating him in ongoing criminal activity. In 1995 petitioner was committed to the California Rehabilitation Center for a two-year term as a narcotic addict, but served beyond that term in two different facilities as an outpatient returnee in order to finish the original commitment.
The reporting social worker for real party in interest Humboldt County Department of Health and Human Services (Department) noted that petitioner's reunification services as to Danielle's sibling, Lelia C., were terminated in July 2006, and she was placed for adoption in June 2009. Further, petitioner had been offered a variety of court-ordered services, but failed to demonstrate improvement in parenting and coping skills, as well as substance use and abuse. Petitioner had not addressed the issues leading to many interventions by the Department, and repeatedly failed to complete treatment, counseling and education services.
The contested hearing took place October 27 and 28, 2010, the Hon. Joyce Hinrichs presiding. The court took judicial notice of (1) the order of commitment finding petitioner incompetent to stand trial for numerous pending felony and wobbler drug-related offenses arising out of an August 18, 2009 incident; and (2) minutes indicating that the next review of petitioner's commitment would take place on April 1, 2011. Petitioner's attorney represented that he was receiving mental health treatment through his current institutional placement.
At the request of counsel for the minor, and over petitioner's objection, the court took judicial notice of dependency proceedings for Lelia. Judge Hinrichs had presided over Lelia's dependency proceedings, and to confirm the underlying allegations, she reviewed the four volumes comprising Lelia's juvenile files. The court observed that petitioner was in prison at the time Lelia was removed from her mother's custody, and upon his release reunification services were provided, including coordinating services related to his release on parole. At the time it was clear petitioner had "mental health issues" that the Department could not fully address because of petitioner's "re-incarceration for a number of times." Ultimately petitioner's "mental health issues" made it impossible for petitioner to reunify.
The juvenile court found by clear and convincing evidence that reunification services had been terminated for a sibling of Danielle for failure of petitioner to reunify; his parental rights over a sibling had been permanently severed; and petitioner did not make reasonable efforts to treat the problems that led to removal of the sibling. Therefore, it ordered reunification services as to Danielle bypassed under section 361.5, subdivision (b)(10) and (11) (§ 361.5(b)). Further, the court made section 361.5, subdivision (e)(1) findings by clear and convincing evidence that it would be detrimental to Danielle to provide petitioner with reunification services because of the likely length of his incarceration, the lack of bonding, and an unlikelihood of success. Finally, the court ordered that a section 366.26 permanency planning hearing be set for February 22, 2011. This petition followed.
Petitioner assails the order bypassing reunification services and directing that a section 366.26 hearing be held. He contends the court lacked competent evidence to make the necessary findings under section 361.5(b)(10) and (11). We disagree.
Whenever a child is removed from a parent's custody, the juvenile court must direct the social worker to provide child welfare services to the child and his or her parents in order to facilitate reunification of the family, unless the case falls within a statutory exception. (§ 361.5, subd. (a).) Section 361.5(b) sets forth the aggravated circumstances permitting a bypass of reunification services. This statute evidences the Legislature's recognition that in some instances it may be fruitless to provide reunification services such that offering services under those circumstances would amount to an unwise use of public resources. (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744.) Subdivision (b)(10) pertains when the court finds, by clear and convincing evidence, that it had ordered termination of reunification services for any siblings or half-siblings of the minor because the parent at issue failed to reunify after the sibling or half-sibling had been removed from that parent, and the parent "has not subsequently made a reasonable effort to treat the problems that led to removal." The subdivision (b)(11) exception pertains when the parental rights of a parent over a sibling or half-sibling of the minor have been severed permanently, and the parent has not made a reasonable effort to treat the problems that led to removal.
Section 361.5(b)(10) and (11) gives parents who have worked toward correcting their problems an opportunity to have that fact considered in subsequent proceedings. (K.C. v. Superior Court (2010) 182 Cal.App.4th 1388, 1393.) The inclusion of the " ' "no reasonable effort" ' " language in these provisions mitigates an otherwise harsh rule that would permit the court to deny reunification services on a finding that services had been terminated to a previous child when the parent had, in reality, worked on addressing the underlying problems. (In re Albert T. (2006) 144 Cal.App.4th 207, 218.) The standard of " ' "reasonable effort to treat" . . . is not synonymous with "cure." ' " (Id. at p. 221.) Thus, where a parent has not entirely vanquished his or her drug problem, the court would not be precluded from determining that the parent had made reasonable efforts to treat it. (Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1464.)
We review an order bypassing reunification services under section 361.5(b) for substantial evidence, examining the whole record in a light most favorable to the juvenile court's findings and conclusions, and deferring to that court on issues of credibility. (In re Albert T., supra, 144 Cal.App.4th at p. 216.)
Here, the circumstances surrounding Danielle's dependency paralleled in many ways to those in Lelia's dependency. Petitioner was in prison facing drug charges at the time Lelia was removed from her mother, and was not able to take advantage of services offered because of mental illness and reincarceration. So, too, petitioner was incarcerated when Danielle was removed from her mother, facing drug charges, and still suffering from mental illness.
Petitioner argued at the disposition hearing that he was "in compliance with the case plan" because he was receiving mental health treatment while under the auspices of the Department of Corrections. Petitioner's involuntary commitment to a state hospital does not qualify as reasonable efforts to address the problems that led to termination of parental rights in Lelia's case. To the contrary, that he was institutionalized in a trial competency program while awaiting trial on numerous drug charges is substantial evidence that he did not address the problems that led to termination of parental rights over Danielle's sibling.
The disposition report and addendum further underscore petitioner's history of criminal recidivism and substance abuse. Judge Hinrichs presided over both dependencies, reviewed Lelia's entire file and rendered specific findings that petitioner's ongoing mental illness and repeated incarceration interfered with his ability to take advantage of services offered in Lelia's case. We take judicial notice of our unpublished opinion in the appeal of petitioner and mother from the order terminating their parental rights to Lelia. (In re Lelia C. (Oct. 29, 2007, A116606).) Therein we related that the Department had petitioned to modify petitioner's case plans based on his "delusional statements" as well as other matters. Further, the pertinent report documented his "parenting deficits; his inability to attend to Lelia's needs without prompting; his troubling behavior and statements, including a threatening style of communication; and his inability to participate positively in Lelia's speech therapy or occupational therapy." Additionally, letters from service providers, an assessment, and feedback from the foster parents "revealed the extent of his disruptive and detrimental behavior in these various settings. . . . It was unclear if he understood any advice offered. He could not provide age appropriate play activities, even with suggestions. Father was hostile and aggressive with the foster parent. Finally, . . . the social worker learned that father was receiving supplemental security income for 'brain damage.' "
Substantial evidence supported the juvenile court's order to bypass reunification service pursuant to section 361.5(b)(10) and (11).
The petition is denied on the merits.
We concur: Sepulveda, J. Rivera, J.