San Bernardino County Children & Family Services Department v. R.B. , 222 Cal. App. 4th 612 ( 2013 )

Filed 12/20/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re S.B., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E058328
Plaintiff and Respondent, (Super.Ct.No. J246789)
v. OPINION
R.B.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Christopher B.
Marshall, Judge. Affirmed.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and
Appellant.
Jean-Rene Basle, County Counsel, and Jamila Bayati, Deputy County Counsel, for
Plaintiff and Respondent.
The San Bernardino County Children and Family Services Department (CFS)
1
intervened on behalf of 12-year-old S.B. and her half-siblings (not involved in this
appeal) due to her mother’s mental illness and substance abuse, and her father’s failure to
protect. The parent’s submitted at the jurisdictional hearing. At the dispositional
hearing, reunification services were granted to mother, who is not a party to this appeal,
but father was denied services pursuant to Welfare and Institutions Code1 section 361.5,
subdivision (b)(16), because he was a registered sex offender. Father appealed.
On appeal, father claims that (1) section 361.5, subdivision (b)(16) is inapplicable
because he was not required to register as a sex offender under federal law, and (2) there
is insufficient evidence to support the court’s finding that reunification services would
not be in the minor’s best interests. We affirm.
BACKGROUND
On November 8, 2012, mother of S.B. (and S.B.’s two half-siblings, M.N., and
M.M.) was admitted at Arrowhead Regional Medical Center for suicidal ideation as well
as bizarre and aggressive behavior. Mother has eight children altogether and a lengthy
history of unstable living arrangements, as well as a history of interventions by child
welfare services for all of her children. Some of mother’s children are adults. Each of
the three children in mother’s custody at the time of the current proceedings had a
1 All further statutory references will be to the Welfare and Institutions Code,
unless otherwise specified.
2
different father.2
On November 13, 2012, CFS filed a dependency petition as to 12-year-old S.B.,
and her half-siblings M.N., and M.M. As to S.B., the petition alleged failure to protect
within the meaning of section 300, subdivision (b), due to mother’s substance abuse and
mental health issues, which interfered with mother’s ability to provide adequate and
appropriate care, supervision and provisions for the child. As to father, the petition
alleged that he had a history of substance abuse which interfered with his ability to
provide adequate and appropriate care. Further, it was alleged that he had knowledge of
mother’s substance abuse and mental health problems but failed to protect S.B. The
petition also included an allegation that S.B. had been left with no provision for support
within the meaning of section 300, subdivision (g), in that father’s whereabouts were
unknown. The children were detained with their maternal grandmother.
At the jurisdictional hearing, the parents submitted on the social worker’s reports.
Those reports outlined mother’s history of using marijuana three times daily and the
children’s statements about chaotic living conditions. Mother admitted she suffered from
bipolar disorder but she did not believe she needed medication.
The children reported to the social worker that mother would yell and scream for
no reason, hit or push them to the ground or against a wall, and drag S.B. by the hair.
2 Additional information is unavailable because the detention report was not part
of the appellate record.
3
They also reported that mother did not fix meals for them regularly, get them to school on
time, or take them for regular medical or dental appointments. The social worker
described mother as suffering from psychosis, or delusional thinking, as a related
symptom of a manic episode of bipolar disorder.
As to father, the report on which the parents submitted revealed he had custody of
S.B. until his arrest and incarceration in 2010 for lewd acts. Father has a lengthy history
of marijuana and methamphetamine use, dating back to his teenage years. Father also
had an extensive criminal history, including drug related charges, and a 2010 conviction
for a violation of Penal Code section 288, subdivision (c)(1), lewd or lascivious acts with
a child of 14 or 15 years. Although father was clean and sober for several years while he
had custody of S.B., he attributed his commission of the sexual offense to a drug relapse
during the three weeks prior to the offense in 2010. He was sentenced to state prison for
that offense and was paroled on December 28, 2011. Father is required to register as a
sex offender.
The report also included allegations that father had exposed himself to his
stepdaughter A.H. and had previously molested A.H.’s cousin, M.Z., on separate
occasions in 2010. However, these allegations were not substantiated.
At the dispositional hearing, the court heard testimony from father and the social
worker. Father denied any inappropriate conduct with A.H. or M.Z. Although he
admitted he was required to register as a sex offender, he wanted to reunify with his
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daughter. The court also accepted a stipulation by all parties that if S.B. were to take the
stand, she would testify that she is not afraid of her father, wanted a chance to reunify
with him, had lived with him from the time she was two or three years of age until she
was nine or 10, enjoyed her visits with him, loved him, and would be happy to live with
him one day.
The court removed custody of S.B. from her parents and maintained her in the
relative placement. The court found that placement of S.B. with father, the noncustodial
parent, would be detrimental. The court granted services to mother, but denied services
to father pursuant to section 361.5, subdivision (b)(16), because he is required to be
registered on a sex offender registry under the Adam Walsh Child Protection and Safety
Act of 2006 (41 U.S.C. § 16913(a)), as required in section 5106a(b)(2)(B)(xvi)(VI) of the
Child Abuse Prevention and Treatment Act of 2006 (42 U.S.C. Sec.
5106a(b)(2)(B)(xvi)(VI).3 Father appealed.
3 Both parties assert that section 361.5, subdivision (b)(16) cites a federal statute
which does not exist. However, there is a section 42 U.S.C. § 5106a(b)(2)(B)(xvi)(VI)
[bold added]. We presume the statute contains a typographical error due to legislative
oversight after reading the entire section together. Section 5106a(b)(2)(B)(xvi)(VI)
relates to requirements that states submit plans to carry out the objectives of the
subchapter in return for grant money under the Child Abuse Prevention and Treatment
Act (CAPTA). Section 5106a(b)(2)(B)(xvi)(VI) requires the Governor of the state certify
that the state has in effect and is operating a statewide program that includes provisions
by which the state does not require reunification of a child with a parent who has been
found to have committed certain enumerated offenses, or is required to register as a sex
offender under section 16913(a) of that title. California’s enactment of Welfare and
[footnote continued on next page]
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DISCUSSION
1. Section 361.5, Subdivision (b)(16) Was Properly Applied In Denying
Reunification Services to Father.
Father argues it was error to deny him services under section 361.5, subdivision
(b)(16), because that subdivision is inapplicable. Father interprets the subdivision to
authorize a bypass of reunification services only where registration is “mandated by the
Superior Court in compliance with 42 U.S.C. sections 5106a(2)(B)(xvi)(VI) and
16913(a).” According to father’s interpretation, unless those magic words were
pronounced by a superior court judge during his criminal sentencing hearing, and unless
he was required to register under federal law, section 361.5, subdivision (b)(16) does not
apply. We disagree.
a. Legislative History-CAPTA
For many years, California’s child welfare policies have been shaped by grants
from the federal government under the CAPTA, later revised under the CAPTA
Reauthorization Act of 2010 (Pub. L. § 111-320, §§ 1, 115.) To be eligible for grant
funds under CAPTA, states are required to adopt certain policies and procedures, relating
to programs for prevention of child abuse and neglect, and services for families in need
[footnote continued from previous page]
[footnote continued from previous page]
Institutions Code section 361.5, subdivision (b)(16), was intended to satisfy the CAPTA
requirement. (Statutes 2012, ch. 847, Sen. Bill 1521.)
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under parts B and E of title IV. (42 U.S.C. §§ 620, et seq., 670, et seq.) Each state that
applies for a grant must submit a state plan which contains a description of the activities
that the state will carry out using the grants, and certain assurances. (42 U.S.C. § 5106a,
subd. (b)(2).)
California receives grants for child abuse or neglect prevention programs. (42
U.S.C. § 5106a.) To be eligible for these grants, California is required to submit a state
plan containing a description of the activities that it will carry out using the grant money
(42 U.S.C. § 5106a, subd. (b)(2)), including an assurance that the state plan is
coordinated with the state plan under part B of title IV of the Social Security Act (42
U.S.C., § 621, et seq.) relating to child welfare services and family preservation and
family support services. (42 U.S.C. § 5106a, subd. (b)(2)(A).) Additionally, the state
plan must include an assurance that the state has in effect and is enforcing a state law, or
has in effect and is operating a statewide program relating to child abuse and neglect that
includes provisions, procedures, and mechanisms to assure that the state does not require
reunification of a surviving child with a parent who has been found by a court of
competent jurisdiction to be required to register with a sex offender registry under section
113(a) of the Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. § 16913,
subd. (a)). (42 U.S.C. § 5106a, subd. (b)(2)(B)(xvi)(VI).)
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b. Legislative History - Section 361.5, Subdivision (b)(16).
Section 361.5, subdivision (b)(16), was added in 2012, as part of Senate Bill 1521.
(Stats. 2012, ch. 847.) Legislative Counsel’s Digest explains that the change to section
361.5, subdivision (b), was adopted to conform to CAPTA, specifically, the CAPTA
Reauthorization Act of 2010 (Pub. L. § 111-320, §§ 1, 115) among other provisions,
which required the amendment of applicable state plans. (Stats. 2012, ch. 847, p. 1; Sen.
Bill No. 1521.) The bill included as a situation when family reunification would not be
required, one where a parent has been required by the court to be registered on a sex
offender registry under a specified federal law. (Legis. Counsel’s Dig., Sen. Bill No.
1521 (2011-2012 Reg. Sess.).)
c. Legislative History – Adam Walsh Act
The Adam Walsh Child Protection and Safety Act of 2006 (“Adam Walsh Act,” or
“the Act”) was a comprehensive federal statutory scheme designed to protect children
from sexual exploitation and violent crime, to prevent child abuse and child pornography,
to promote Internet safety, and to honor the memory of Adam Walsh and other child
crime victims. (Pub.L. No. 109-248 (July 27, 2006) 120 Stat. 587.) Title I of the Act
contains the Sex Offender Registration and Notification Act. (Pub.L. No. 109-248,
§§ 101-155; 42 U.S.C. § 16901, et seq.)
Titles II throughVII of the Act provide for Federal Criminal Law Enhancements
Needed to Protect Children from Sexual Attacks and Other Violent Crimes (Pub.L. No.
8
109-248, §§ 201-216), Civil Commitment of Dangerous Sex Offenders (Pub.L. No. 109-
248, §§ 301-302), Immigration Reforms to Prevent Sex Offenders from Abusing
Children (Pub.L. No. 109-248, §§ 401-402), Child Pornography Prevention (Pub.L. No.
109-248, §§ 501-507), Grants Studies, and Programs for Children and Community Safety
(Pub.L. No. 109-248, §§ 601-639), and the Internet Safety Act. (Pub. L. No. 109-248,
§§ 701-707.)
Title I, the Sex Offender Registration and Notification Act (SORNA) contains a
comprehensive national system for the registration of sex offenders and offenders against
children. (Pub.L. No. 109-248, § 101, et seq.) That portion of the Act was codified at 42
United States Code, section 16901, et seq. Part A of the subchapter expanded the
definition of sex offender, and set out a three-tiered system for classification of sex
offenders. Subparagraph (9) of section 16911 defines a “sex offender registry” as a
registry of sex offenders maintained by a jurisdiction. Subparagraph (10) of the same
section defines a “jurisdiction” 4 to include a state. (42 U.S.C. § 16911, subp. (1)(A).)
Section 16912 requires each jurisdiction to maintain a jurisdiction-wide sex
offender registry. (42 U.S.C. § 16912, subd. (a).) Each jurisdiction is required to make
the information in the registry available to the public on the Internet, and the Internet site
4Specifically, a “jurisdiction” is defined under SORNA as a state, the District of
Columbia, Commonwealth of Puerto Rico, Guam, American Samoa, the Northern
Mariana Islands, the United States Virgin Islands, and federally recognized Indian tribes.
(42 U.S.C. § 16911, subd. (10).)
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is required to interface with the Dru Sjodin National Sex Offender Public Website. (42
U.S.C. § 16918, subd. (a).) The United States Attorney General is required to maintain a
national database at the Federal Bureau of Investigation for each sex offender and any
other person required to register in a jurisdiction’s sex offender registry (National Sex
Offender Registry). (42 U.S.C. § 16919, subd. (a).)
Each jurisdiction was given a time limit to implement the provisions of the Adam
Walsh Act, with provisions for extensions of time. (42 U.S.C. § 16924.) At the end of
the implementation period, a jurisdiction that failed to substantially implement the title
would lose 10 percent of the funds otherwise paid to the states under the Edward Byrne
Memorial Justice Assistance Grant Program (ref. 42 U.S.C. § 3750, et seq.). (42 U.S.C.
§ 16925, subd. (a).) These grant funds are intended for use by the states to provide
additional personnel, equipment, supplies, contractual support, training, technical
assistance, and information systems for criminal justice programs. (42 U.S.C. § 3751,
subd. (a).)
d. Analysis
Father argues that section 361.5, subdivision (b)(16), does not apply to him
because he was not required to register under federal law. He is incorrect.
California has maintained a sex offender registry since 1947. (Stats. 1947, ch.
1124 § 1.) California has not adopted SORNA. (See State of California Sex Offender
Management Board’s Statement of Position (2009), found at
10
http://www.casomb.or/docs/Adam%20Walsh%20Paper.pdf, as of October 16, 2013.)
SORNA’s changes were designed to make more uniform what had remained a patchwork
of federal and 50 individual state registration systems. (Reynolds v. United States (2012)
565 U.S. ___, ___ [132 S.Ct. 975, 181 L.Ed.2d 935, 939].) Even before SORNA,
Congress had enacted the Wetterling Act in 1994 which used the federal spending power
to encourage states to adopt sex offender registration laws. (See former 42 U.S.C.
§ 14071, et seq., repealed by the Adam Walsh Act, Pub. L. 109-248, § 129(a).)
The fact that California has not implemented all of the Adam Walsh Act does not
mean that SORNA is inapplicable to him. Under SORNA, each “jurisdiction” is required
under federal law to maintain a registry. (42 U.S.C. § 16912, subd. (a).) There have been
national standards for sex offender registration since the 1994 enactment of the Jacob
Wetterling Crimes Against Children and Sexually Violent Offender Act, which
California has implemented. (Former 42 U.S.C. § 14071; see In re Alva (2004) 33
Cal.4th 254, 273-274.)5
SORNA obligates a sex offender to register and keep the registration current in
each “jurisdiction” where the offender resides, is an employee, or is a student. (42 U.S.C.
5 The California Department of Justice makes information about registered sex
offenders available to the public via an Internet website, entitled “Megan’s Law.” (Pen.
Code, §§ 290.4, 290.46; see http://www.meganslaw.ca.gov as of October 16, 2013.) This
web page has a link to the National Sex Offender Public Website (http://www.nsopr.gov/
as of October 16, 2013) on the home page. Thus, California is compliant with title I of
SORNA.
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§ 16913, subd. (a); United States v. Hester (2d Cir. 2009) 589 F.3d 86, 93.) The fact that
a state (“jurisdiction”) has not met the administrative requirements of SORNA does not
affect a sex offender’s duty to register in the jurisdiction where he resides. (Ibid.)
In Hester, the defendant was convicted in 2006 of sexual abuse in New York,
which obligated him to register as a sex offender under New York law, which he did in
that year. However, a year later, Hester relocated to Florida where he was arrested on a
warrant for violating his New York probation. Subsequently, Hester was indicted in
federal court for violating 18 United States Code, section 2250, subdivision (a), for
failing to register under SORNA. The defendant appealed from the federal conviction
claiming SORNA did not apply to him because he had no actual notice of the registration
requirement due to the fact New York had not implemented SORNA.
The circuit court of appeals disagreed, explaining that a jurisdiction’s failure to
fully implement SORNA did not relieve the defendant of the duty to register. (United
States v. Hester, supra, 589 F.3d at p. 92.) The court observed that compliance with
SORNA is not impossible in light of the fact that the states at issue had a registration
program, although they had not implemented SORNA. (Id. at p. 93.)
The Hester court relied on several circuit court of appeals decisions. In United
States v. Brown (11th Cir. 2009) 586 F.3d 1342, a similar claim was made that SORNA
did not apply because Alabama had not implemented it. There, the reviewing court drew
a distinction between a jurisdiction’s duty to implement SORNA and a sex offender’s
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duty to register. (Brown, at p. 1348, citing United States v. Gould (4th Cir. 2009) 568
F.3d 459, 464; see also United States v. Hinckley (10th Cir. 2008) 550 F.3d 926, 939
[defendant with Washington conviction not relieved from liability under federal law for
failing to register in Oklahoma, which had not adopted SORNA, abrogated on another
point in Reynolds v. United States, supra, 565 U.S. at p. ___ [132 S.Ct. 975, 980, 181
L.Ed.2d 935] [SORNA did not apply to pre-Act offenders charged with failing to register,
until the Attorney General so specified].)
Therefore, SORNA’s requirements to register and maintain registration are not
expressly conditioned on a state’s implementation of the Act. (United States v. Gould,
supra, 568 F.3d at p. 464.) A jurisdiction’s failure to implement SORNA results in a loss
of federal funds, but is not an excuse for an offender who has failed to register; the
requirement imposed on individuals to register is independent of the requirement
imposed on the states to implement the enhanced registration and notification standards
of SORNA. (Id. at p. 465.)
The fact that California has not fully implemented SORNA does not mean that
father was not required to register under the Adam Walsh Act/SORNA, because SORNA
simply requires that sex offenders register in each jurisdiction where the offender resides,
is employed, or is a student. (42 U.S.C. § 16913, subd. (a).) For purposes of Welfare and
Institutions Code section 361.5, subdivision (b)(16), it is irrelevant that California has not
13
implemented the remaining provisions of the Act: he was and is required to register
under the Act.
We recognize that the language of the statute contains an apparent typographical
error. (See fn. 3.) However, the statute’s reference to the Adam Walsh Act was intended
to comply with CAPTA (42 U.S.C. § 5106a, subd. (b)(2)(B)) by bringing all parents or
guardians who are required to register as sex offenders in any jurisdiction under the
umbrella of the bypass provisions of section 361.5. Without reference to the Act, only
parents convicted in California and required to register under Penal Code section 290
could be denied services. This would mean that a parent convicted in another state or
jurisdiction of a sex offense, and required to register as a sex offender in that jurisdiction,
would be eligible for reunification services for a child removed from parental custody in
California. To avoid that anomalous situation, the Legislature included reference to the
congressional Act, making it clear that any sex offender, from any jurisdiction, would be
presumptively ineligible for reunification services.
As we have explained, any sex offender is required to register under the Act,
because the SORNA registration provisions apply to any sex offender, even if the
jurisdiction in which he or she was convicted has not adopted or substantially
implemented it. The language of section 361.5, subdivision (b)(16), simply requires that
any sex offender whose offense requires registration under the Act is presumptively
ineligible for services. The section applies to father notwithstanding the fact that
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California has not fully implemented the Adam Walsh Act because SORNA requires him
to register as a sex offender in any jurisdiction.
2. Substantial Evidence Supports the Lower Court’s Finding that Granting
Reunification Services to Father Was Not in the Minor’s Best Interest.
Father argues that no substantial evidence supports the finding that reunification
services to him would not be in the minor’s best interests. He cites to evidence in the
record to support his claim, but does not cite any authority. We disagree with his
contention.
Other than in cases of voluntary relinquishment, the general rule is that when a
dependent child is removed from the parent’s or guardian’s physical custody,
reunification services must be offered. (§ 361.5, subd. (a); In re Ethan C. (2012) 54
Cal.4th 610, 626.) Services need not be provided, however, when the court finds, by
clear and convincing evidence, the existence of one or more specified circumstances.
(Ibid.) These circumstances give rise to a “bypass” of services. (In re A.M. (2013) 217
Cal.App.4th 1067, 1074.) The series of circumstances listed under section 361.5,
subdivision (b), reflect the Legislature’s desire to provide services to parents only where
those services will facilitate the return of children to parental custody. (A.M., at p. 1074.)
When the court determines a bypass provision applies, the general rule favoring
reunification is replaced with a legislative presumption that reunification services would
15
be an unwise use of governmental resources. (In re Allison J. (2010) 190 Cal.App.4th
1106, 1112.)
However, even in the specified circumstances, the court may provide reunification
services if it finds, by clear and convincing evidence, that reunification – not
reunification services – is in the dependent child’s best interests. (§ 361.5, subd. (c); In
re D.F. (2009) 172 Cal.App.4th 538, 548.) A court called upon to determine whether
reunification would be in the child’s best interest may consider a parent’s current efforts
and fitness as well as the parent’s history. (In re Ethan N. (2004) 122 Cal.App.4th 55,
66.) Additional factors for the juvenile court to consider when determining whether a
child’s best interest will be served by pursuing reunification include: the gravity of the
problem that led to the dependency; the strength of the relative bonds between the child
and both the parent and caretakers; and the child’s need for stability and continuity,
which is of paramount concern. (Id. at pp. 66-68; D.F., at p. 547.) The burden is on the
parent to show that reunification would serve the best interests of the child. (In re A.G.
(2012) 207 Cal.App.4th 276, 281, citing In re William B. (2008) 163 Cal.App.4th 1220,
1227.)
We review an order denying reunification services by determining if substantial
evidence supports it. (R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 914.) In
doing so, we resolve all conflicts in the evidence in favor of the juvenile court’s finding.
(Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600.)
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Father cites efforts he has made on his own to improve his parenting ability,
evidence of his relationship with the minor, and her desire to maintain a relationship with
him, as evidence that reunification would be in her best interests. We acknowledge those
matters. However, the determination that reunification would be in the minor’s best
interests is not simply a matter of whether a parent engages in parenting classes and
counseling, or whether the child wants to live with him.
Father’s testified that the sexual offense for which he was convicted was
committed during a period of time when he had relapsed and was abusing
methamphetamine. He did not know what triggered his relapse. Although he had
participated in 10 therapy sessions, only three of them had addressed the sexual abuse
case, and his therapist had not helped father gain insight as to why he may have
committed the sexual abuse. The fact father did not know why he had relapsed with
drugs caused the social worker to be concerned for his continued sobriety, since his drug
use was a problem of longstanding. Given that he attributed his commission of the sex
offense to his drug relapse, this was a reasonable concern.
In denying father services, the court cited the fact father had a substantial history
of substance abuse since he was 13 years of age, and its concern that there are still
unresolved issues regarding father’s substance abuse because father did not know why he
relapsed. The court also noted father’s extensive criminal history, which included drug
convictions and assault with a deadly weapon, in addition to his history of sexual abuse
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which required him to be registered as a sex offender. The court mentioned the
unsubstantiated allegations of sexual abuse involving the two other girls, who were 13
and 15 years of age, which raised concern because the minor was almost 13. Finally, the
court cited the father’s testimony that he had not yet acquired insight from counseling as
to why he committed the 2010 sexual abuse that led to his conviction.
Whether or not the court improperly relied on the unsubstantiated allegations of
sexual abuse relating to his former stepdaughter and her cousin does not compel a
reversal. Disregarding that finding, there is still clear and convincing evidence to support
the court’s finding that it was not in the minor’s best interests for father to receive
services. His criminal record is substantial and his history of drug abuse is extensive.
Further, he lacked insight into the factors contributing to his drug use, criminal activity,
or sexual abuse. He had custody of the minor at the time he relapsed in 2010 and left the
minor for two weeks during the period in which he committed the sexual abuse.
Father did not carry his burden of showing by clear and convincing evidence that
reunification would be in the minor’s best interests. (§ 361.5, subd. (c).) Under such
circumstances, it was reasonable to conclude that reunification services should be denied
pursuant to section 361.5, subdivision (b)(16).
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION
RAMIREZ
18
P. J.
We concur:
HOLLENHORST
J.
CODRINGTON
J.
19