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In Re Destiny W., A Person Coming Under the Juvenile Court v. Darlene W

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)


February 7, 2012

IN RE DESTINY W., A PERSON COMING UNDER THE JUVENILE COURT LAW. SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
DARLENE W., DEFENDANT AND APPELLANT.

(Super. Ct. No. J05522)

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

In re Destiny W.

Ca3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Darlene W., mother of the minor (mother), appeals from the judgment of disposition denying her services. (Welf. & Inst. Code, §§ 358, 360, 395.)*fn1 Mother contends the juvenile court erroneously applied the provisions of section 361.5, subdivisions (b)(10) and (11), to deny her services. Based upon a previous unpublished decision by this court in case No. C068124, which decided the identical issues in mother's favor, when ruling on a petition for extraordinary writ that mother filed as to the minor's half sibling, the San Joaquin County Human Services Agency (Agency) concedes the judgment must be reversed and the case remanded to the juvenile court for further hearing.*fn2 We shall accept the concession as the necessary outcome of our previous ruling, reverse the judgment of disposition and remand for further hearing.

FACTS

The Agency filed a non-detaining petition in August 2010 as to the two-year-old minor and her infant sister based on an incident of domestic violence.*fn3 Mother had an extensive history of domestic violence from 2006 to the present, which she had not addressed although provided voluntary services. Mother also had a substance abuse history that had resulted in the removal of three older children with whom she failed to reunify. Parental rights were terminated as to two of the three older children. The petition in the current case did not allege the minor and her sister were at risk of harm due to mother's substance abuse.

The juvenile court sustained the petition in September 2010. At the dispositional hearing, the court denied services to mother pursuant to section 361.5, subdivisions (b)(10) and (11), based on her long history of untreated domestic violence, but ordered reunification services for the minor's father.

DISCUSSION

Mother contends the court erroneously applied section 361.5, subdivisions (b)(10) and (11), to deny her services.*fn4 We adopt the reasoning set forth in the opinion in D.W. v. Superior Court, supra, C068124.

"The two subdivisions permit the juvenile court to bypass services to a parent who has either failed to reunify or has had parental rights terminated as to a sibling or half sibling of the minor and who 'has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent.' (§ 361.5, subds. (b)(10) & (11).)

"[Mother] does not challenge the first condition of each statute since the evidence clearly shows she failed to reunify with the three older children and her parental rights were terminated as to two of them. The second condition however, presents a different question.

"The problem that led to removal in the prior dependency was cocaine abuse. There is no evidence domestic violence played any part in the removal of any of the three older children. While the current petitions allege past substance abuse, they contain no allegations of current substance abuse and the social worker testified there were no such allegations. Moreover, there is no evidence of current substance abuse. [Mother] testified she had not used cocaine for years. There was some evidence of use of alcohol but there was no evidence of any positive tests for controlled substances. The evidence supports the conclusion that [mother] has, in fact, made a reasonable effort to treat the problem, i.e., substance abuse, that led to the removal of the siblings.

"It is clear that [mother] has not made efforts to address her domestic violence issues. However, according to the evidence, domestic violence was not a problem that led to removal of the siblings in the prior dependencies, and thus, [mother]'s failure to remedy that problem cannot be used as a basis for bypassing services in the current cases. (§ 361.5, subds. (b)(10) & (11); In re Albert T. (2006) 144 Cal.App.4th 207, 220 [current case based on domestic violence; however, in prior case, sibling was removed only due to parental inability to provide care for him, allegations of domestic violence having been dismissed from the petition].) The language of the statute itself makes it clear that only when 'the problems that led to the removal' of the sibling are untreated can bypass of services be considered under section 361.5 subdivision (b)(10) or (11). The juvenile court erred in applying the bypass provisions to [mother] to deny her services. The court must conduct a new disposition hearing to consider whether [mother] is entitled to services." (D.W. v. Superior Court, supra, C068124.)

The Agency concedes domestic violence was not the problem that led to removal in the prior dependency and that mother's prior substance abuse cannot be a basis for denial of services. We accept the concession.

DISPOSITION

The judgment of disposition is reversed insofar as it denies reunification services to Darlene W. with the minor. The case is remanded to the juvenile court for a new disposition hearing to consider whether reunification services should be provided to Darlene W. with the minor.

We concur: BLEASE , Acting P. J. BUTZ , J.


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