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J. O. et al v. Superior Court of Sacramento County

July 8, 2011

J. O. ET AL., PETITIONERS,
v.
SUPERIOR COURT OF SACRAMENTO COUNTY, RESPONDENT; SACRAMENTO COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES ET AL., REAL PARTIES IN INTEREST.



Super. Ct. Nos. JD230261 & JD230262

The opinion of the court was delivered by: Blease , Acting P.J.

CERTIFIED FOR PUBLICATION

ORIGINAL PROCEEDING; petitions for extraordinary writ. Writs Denied.

Petitioners, mother J.O. and father M.H, seek an extraordinary writ (Cal. Rules of Court, rule 8.452) to vacate the orders of the juvenile court made at the dispositional hearing on a supplemental petition, denying reunification services and setting a selection and implementation hearing. (Welf. & Inst. Code, §§ 366.26, 387 [further undesignated statutory references are the Welfare and Institutions Code].) We have previously stayed proceedings in the respondent court.

The question presented is whether the bypass provisions of section 361.5, subdivision (b)(13) apply where the parents have never been offered family reunification services and neither parent was previously a subject of court-ordered treatment. We conclude that it does not. However, because the court has broad discretion in entering disposition orders and properly exercised that discretion, the petitions must be denied.

FACTS

The minors, ages two and five, were detained in October 2009 pending the jurisdiction and disposition hearings on a petition which alleged the minors were at risk of physical harm due to parental substance abuse and domestic violence. Although there were prior referrals for abuse and neglect, the parents had not previously been subject to the jurisdiction of the juvenile court. The juvenile court sustained the petition, adjudged the minors dependents and returned them to the custody of the mother. A requirement that the father be excluded from the home, as discussed in the social worker's report, was evidently a precondition for this order. However, the juvenile court's orders did not remove custody of the minors from the father.

The parents received 12 months of child welfare services which included substance abuse treatment in several programs, Dependency Drug Court, a domestic violence program, parenting education, and drug testing. The parents' participation in services was marred by repeated relapses and failures to complete programs.

In December 2010, the minors were detained on a supplemental petition (§ 387) which alleged the mother failed to benefit from services and continued to abuse drugs. The Sacramento County Department of Health and Human Services (Department) recommended a bypass of services pursuant to section 361.5, subdivision (b)(13) due to the parents' chronic substance abuse and failure to comply with court-ordered treatment prior to filing the supplemental petition. The Department asserted that if the bypass provisions of subdivision (b)(13) applied, the exception provisions of section 361.5, subdivision (c) would not apply because further attempts at reunification were not in the minors' best interests.

During the contested dispositional hearing, the court found that the bypass provisions of section 361.5, subdivision (b)(13) did apply. In ruling on disposition, the court expressed its belief that the minors were removed from the father and that he received reunification services while the mother retained custody of the minors. The court analyzed the question of further services for the father both from the standpoint of the exception to the bypass provision and of the 12-month review hearing provisions of section 366.21, subdivision (f) which could extend the father's reunification services to the 18-month maximum reunification period. The court first stated it could not find a substantial probability that the father could reunify within the 18-month period if services were not bypassed. The court then addressed the exception to the bypass provision. The court reviewed the parents' ongoing incidents of substance abuse and domestic violence, behavioral problems of the older child, the quality of visitation, the length of services already received, the parents' failure to benefit from services and the minors' needs for permanence and stability, and concluded there was not clear and convincing evidence that reunification was in the minors' best interests. The court denied further services for both parents and set a selection and implementation hearing.

DISCUSSION

The parents argue that the provisions of section 361.5, subdivision (b)(13) do not apply in this case since the parents never had court-ordered services before the filing of the section 300 petition and, after the disposition hearing on the section 300 petition, both parents had family maintenance services, not family reunification services.

Section 361.5 subdivision (b)(13) describes two ways in which services may be denied to parents who have been unsuccessful in substance abuse treatment programs prior to the disposition hearing at which the question of bypassing services is raised.*fn1 The first is: "That the parent or guardian of the child has 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 that brought that child to the court's attention . . . ."

The parents argue that the phrase "prior to the filing of the petition that brought that child to the court's attention" must refer to the initial petition and, since neither parent was subject to court-ordered treatment prior to the initial petition, this provision cannot apply to them. The Department contends that the provision can be read to include section 387 supplemental petitions because these ...


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