IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Calaveras)
November 3, 2011
IN RE A.C., A PERSON COMING UNDER THE JUVENILE COURT LAW. CALAVERAS WORKS & HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
J.C., DEFENDANT AND APPELLANT.
(Super. Ct. No. JD4592)
The opinion of the court was delivered by: Butz , J.
In re A.C.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellant J.C., father of the minor A.C. (born Sept. 2001), appeals from the juvenile court's March 2011 orders denying reunification services and reinstating its prior order terminating parental rights. (Welf. & Inst. Code, §§ 395, 366.26, 361.5, subd. (e)(1).)*fn1  Father contends insufficient evidence supports the juvenile court's order denying reunification services. We shall affirm.
In March 2007, the minor was living with her substance-abusing maternal grandmother when her mother was arrested for drug offenses.*fn2  In April 2007, the minor was placed in protective custody and the Calaveras County Works and Human Services Agency (the Agency) filed a dependency petition alleging jurisdiction over the minor pursuant to section 300, subdivisions (b) (failure to protect) and (g) (no provision for support).
Father was in county jail at the time. He refused to go to the detention hearing, as he wanted nothing to do with the dependency proceedings. He was later sent to state prison on a parole violation. He executed a waiver of reunification services in April 2007.
Father was not present when the juvenile court ordered reunification services for the mother at the May 2007 disposition hearing. In June 2007, the Agency filed a petition for modification (§ 388) requesting counsel for father and informing the juvenile court that his waiver of services was invalid because he did not have counsel at the time. Father requested reunification services, expecting to be released from prison in August 2007. He was appointed counsel in June 2007.
In July 2007, the Agency reported father owed $15,000 in child support and his reunification services were terminated for another child in an earlier dependency. The Agency recommended no services for father as he did not qualify for presumed father status.
The minor called the mother's current boyfriend her father. She was moved to a new foster home in May 2007 due to her aggressive behavior towards her schoolmates and foster siblings.
An October 2007 status review report related that the parents were unmarried and living together when the minor was born. Father was named as father on the birth certificate and held the minor out as his own. A paternity test was ordered in August 2007, but father had not made himself available for testing.
Father never responded to the social worker's calls after his release from prison. Since father had almost no contact with the minor during her lifetime and did not submit to a paternity test, the Agency considered him an alleged father.
Father did not attend the October 2007 six-month review hearing. Father's counsel reported having no contact with him. An April 2008 report noted father was now in Deuel Vocational Institution, and DNA testing determined he was the biological father with 99.99 percent probability.
At the April 2008 12-month review hearing, father asked for visitation upon his release from prison. The juvenile court stated father could file a petition for modification upon his release from prison. The juvenile court returned the minor to the mother after finding she had made adequate progress.
An October 2008 status review report stated father had not met with the social worker to arrange visits with the minor. The social worker gave father her business card when he contacted her after arriving late for an October 2008 hearing. The social worker spoke to him later, but father never arranged a visit with the minor.
The Agency filed a subsequent petition (§ 342) in April 2009 after the mother tested positive for marijuana and methamphetamine. Father was absent from the April 2009 jurisdictional hearing in which the juvenile court sustained the petition. He did not attend the May 2009 dispositional hearing where the minor was placed with the mother. The minor was detained in August 2009, after the Agency filed supplemental petitions (§ 387) alleging the mother's drug use, domestic violence with her boyfriend, and physical abuse of the minor.
The August 2009 jurisdictional report concluded father was the presumed father after the Agency learned he executed a declaration of paternity in November 2001. The juvenile court sustained the supplemental petitions in August 2009. Father was not present and his counsel was excused. The report noted that the minor verbally and physically abused her schoolmates and her half sister An.C.*fn3 
The juvenile court terminated reunification services as to the mother and set a section 366.26 hearing in September 2009. Father, listed as the presumed father in the juvenile court's orders, was not present.
According to the section 366.26 report, the foster mother was afraid to leave the minor and her half sister alone together. The foster parents, with whom the minor had lived for 11 months of the dependency, expressed interest in adopting her. The adoption specialist was unable to contact father.
In February 2010, father filed a petition for modification (§ 388) seeking reunification services, alleging his recent release from prison as a change of circumstances. The juvenile court denied the petition.
Testimony at the section 366.26 hearing established the minor's behavior improved after she was placed in a different foster home than her half sister. The juvenile court terminated parental rights in February 2010, with a permanent plan of adoption.
Father appealed the juvenile court's orders, contending he was improperly denied reunification services. In an unpublished opinion, we found the juvenile court never satisfied its duty to inquire whether father was the presumed father or whether he was entitled to reunification services. We reversed the order terminating parental rights and remanded for a hearing to determine whether father is the presumed father and, if so, whether he is entitled to reunification services. (In re A.C. (Nov. 10, 2010, C064318) [nonpub. opn.].)
A December 2010 status review report from her counselor related that the minor made minimal progress, although the love and support from her current foster family allowed her to remain safe in the current placement. Among the minor's problems were unresolved issues of loss and grief associated with neglect and abandonment, as well as her low self-esteem and inability to address these issues. The Agency noted the minor was doing well in her foster home but continued to struggle with her behavior at school. A school psychologist felt that her behaviors were related to the adoption. The psychologist believed there would be a significant positive change in the minor's behavior once her adoption was finalized.
A February 2011 interim review report by the Agency indicated it would stipulate that father was the presumed father. Father's criminal history dated back to 1999, with seven misdemeanor and three felony convictions, as well as numerous parole and probation violations.
The interim report noted that in July 2010, deputies found methamphetamine and drug paraphernalia in the home that father shared with his girlfriend. Later that month, father pleaded guilty to felony possession of methamphetamine and possession of drug paraphernalia, with deferred entry of judgment. In August 2010, father was found possessing methamphetamine, methamphetamine paraphernalia, and prescription pills in another person's name. Father pleaded no contest to felony possession of methamphetamine and was sentenced to two years in state prison.
The interim report related a domestic violence incident between father and his girlfriend in March 2010. Deputy sheriffs responded to a report of father head-butting his girlfriend while her three-year-old child was present. The girlfriend said they had been arguing all day, with father calling her a "Fake bitch" and head-butting her in the face. The girlfriend showed obvious signs of intoxication and said that she and father were drinking all day. Father admitted drinking but did not show signs of intoxication. Other people in the apartment complex acknowledged hearing the girlfriend yell that father head-butted her.
Father was arrested for domestic battery. The arresting deputy recommended reporting the incident to child protective services due to the three- and 14-year-old children who lived in the residence. The deputy also noted that law enforcement responded to the apartment at least 20 times in the past year to investigate fights, disturbances of the peace, disorderly conduct, and harboring a dangerous parolee at large.
At the March 2011 hearing on remand father was present in custody. The parties stipulated father was the presumed father. The juvenile court took judicial notice that father was incarcerated at Deuel Vocational Institution. The Agency withdrew claims father was ineligible for services under section 361.5, subdivision (b)(10) and (11), but asserted he was not entitled to services pursuant to subdivision (e)(1).
Father testified that he expected to be released from prison in August 2011. He wanted reunification services in order to raise his child. He claimed seeing her "off and on" since birth because her mother "wasn't that much fun to be around." Father admitted asking for visitation before but not attending when a visit was arranged. He did not think it was a good idea for the minor to visit him in prison. He intended to live with his girlfriend, whom he planned to marry, upon his release from prison.
Father admitted he never had a relationship with his daughter and never asked the juvenile court for custody or visitation. He owed child support but was unaware of the amount. Father tried to establish a relationship with his daughter by "coming to these courts every time you guys say I need to come here."
Father was aware the minor did not know who he was and called another person her father. He never sent her a letter or a card while he was in prison, and made no attempt to contact her. He did not know why he did not take steps to have time with his daughter.
Father admitted using methamphetamine. At the prior section 366.26 hearing, he told the juvenile court that he was almost off parole and planned to stay out of trouble. Father agreed that he did not keep this promise. He attended Alcoholics Anonymous and Narcotics Anonymous, but no other programs in prison.
Regarding the domestic violence incident with his girlfriend in March 2010, father admitted drinking vodka the entire day. The incident concerned him, but "things are different now." He admitted the police had been to their residence many times.
The juvenile court ruled father was the presumed father and denied reunification services, finding father was currently incarcerated and providing services would be detrimental to the minor. In support of its order, the juvenile court relied on the minor's age, the lack of any parent-child bond, father's current incarceration, his criminal record, and that he had "never demonstrated any sustained effort to be a father" to the minor. In addition, the juvenile court found father's "testimony was lackadaisical and at times deceptive. On balance his testimony inspired no confidence in the sincerity of the position he now asserts." In March 2011, the juvenile court reinstated the order terminating parental rights.
Father contends the juvenile court erred in bypassing reunification services pursuant to section 361.5, subdivision (e)(1) (section 361.5(e)(1)) . We disagree.
Section 361.5(e)(1) provides, in pertinent part: "If the parent or guardian is incarcerated or institutionalized, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the length and nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered and, for children 10 years of age or older, the child's attitude toward the implementation of family reunification services, the likelihood of the parent's discharge from incarceration . . . within the reunification time limitations described in subdivision (a), and any other appropriate factors. . . . Reunification services are subject to the applicable time limitations imposed in subdivision (a)."
We review a juvenile court's denial of reunification services for substantial evidence. (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) "In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact." (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)
Examining each of the factors enumerated in section 361.5(e)(1) at great length, father finds the juvenile court's decision to be deficient. He asserts there was no showing services would be detrimental to the minor, the length of his remaining incarceration favored services, the Agency was estopped from stating it was too late to order services, the minor's age does not support a finding of detriment, father's crimes were particularly amenable to services, a rap sheet in the Agency's report was not competent evidence, and the juvenile court's findings are not supported by substantial evidence.*fn4 
The record supports the denial of reunification services for father. Father conceived the minor and filed a declaration of paternity at her birth. Although this makes him the minor's presumptive father (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 595-596; Fam. Code, § 7611), he has not acted like a father in the ensuing nine and a half years.
Father was a stranger to his daughter at the time of the hearing on remand, and there was no bond between them. He never supported his daughter, owing $15,000 in unpaid child support. His participation in the dependency was minimal for most of its duration. He repeatedly missed crucial hearings, did not return phone calls to the social worker, and did not follow through with visitation when it was offered. His participation was so minimal that counsel was excused at one point. Father did not meaningfully participate in the dependency until termination of parental rights loomed. Only then did he start attending the dependency hearings with any regularity, although he continued to have no contact with his daughter.
There is additional evidence that reunification services were not in the minor's best interests: the nature of father's crimes. Father was in prison following a conviction for possession of methamphetamine and had another felony conviction for the same offense. The mother's drug use was the cause of the dependency, and is the cause of an alarming number of dependency cases. Methamphetamine is a powerful and highly addictive artificial stimulant. (PDK Labs. v. United States DEA (D.C. Cir. 2006) 438 F.3d 1184, 1186.) "'Chronic methamphetamine abuse can lead to psychotic behavior including intense paranoia, visual and auditory hallucinations, and out-of-control rages that can result in violent episodes.'" (Ibid.) Father is correct that services are available for treating drug addiction. Nonetheless, having a parent who uses methamphetamine presents a clear danger to a child. Having a current drug conviction certainly does not preclude services, but the nature of father's current conviction was another factor supporting the denial of services.*fn5 
Father's inability to provide a safe home for the minor in the foreseeable future is yet another factor supporting the order. An incarcerated parent's ability to provide a safe, permanent home is a factor when considering whether services are appropriate. (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 119.) Upon his release from prison, father was planning on living with his girlfriend, with whom he had a history of domestic violence. He had no plan of placing the minor with a relative while he was in prison, and there was no evidence he could provide her with a safe and permanent home.
Father disagrees with Nikolas F., asserting the availability of a safe and permanent home for the minor was not an appropriate consideration regarding whether services would be detrimental to the minor. "Section 361.5 requires the provision of services to parents 'for the purpose of facilitating reunification of the family . . . .' The provision of services to a non-custodial parent who does not seek custody of the [minor] does not in any way serve this purpose. . . . [T]herefore such services are not required to be offered or provided." (Robert L. v. Superior Court (1996) 45 Cal.App.4th 619, 628.) Accordingly, whether an incarcerated parent can provide a safe and permanent home for the minor at some point is relevant to his or her request for services. The record supports a conclusion that father could not provide a safe and permanent home for the minor, even with reasonable services.
The lack of any bond with the minor, father's failure to participate in most of the dependency, the nature of father's criminal conviction, and the evidence of his inability to provide a safe and stable home for the minor combine to provide clear and convincing evidence that services for father were not likely to succeed and were not in the minor's best interests. Substantial evidence supports the juvenile court's decision.
The juvenile court's orders are affirmed.
We concur: RAYE , P. J. MAURO , J.