In re B.M. CA4/2 ( 2021 )


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  • Filed 6/11/21 In re B.M. CA4/2
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FOURTH APPELLATE DISTRICT
    DIVISION TWO
    In re B.M. et al., Persons Coming Under
    the Juvenile Court Law.
    SAN BERNARDINO COUNTY
    CHILDREN AND FAMILY SERVICES,                                           E075825
    Plaintiff and Respondent,                                      (Super.Ct.Nos. J281951, J281952
    & J281953)
    v.
    OPINION
    R.M.,
    Defendant and Appellant.
    APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
    Judge. Affirmed.
    Liana Serobian, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Michelle D. Blakemore, County Counsel, and Pamela J. Walls, Special Counsel,
    for Plaintiff and Respondent.
    1
    INTRODUCTION
    Defendant and appellant R.M. (father) challenges the juvenile court’s order
    denying him reunification services pursuant to Welfare and Institutions Code1 section
    361.5, subdivision (b)(13). He contends the court made a mistake of law when it
    considered his failure to participate in voluntary enhancement services provided after the
    filing of the dependency petition as the requisite court-ordered services under section
    361.5, subdivision (b)(13). He also argues his equal protection rights were violated in
    denying him services. We affirm.
    PROCEDURAL BACKGROUND
    On August 6, 2019, the San Bernardino County Children and Family Services
    (CFS) filed a section 300 petition on behalf of B.M., R.M., and K.M. (the children).2
    B.M. was three months old, R.M. was 17 months old, and K.M. was nine years old at the
    time. The petition alleged that the children came within section 300, subdivisions (b) and
    (d). Specifically, it alleged that father struggled with substance abuse, had a history of
    engaging in inappropriate sexual contact with a four-year-old child, was currently under
    criminal investigation for possession of child pornography, and failed to protect the
    children since they were exposed to domestic violence in the home. The petition also
    1 All further statutory references will be to the Welfare and Institutions Code
    unless otherwise indicated.
    2 CFS filed a separate petition on behalf of each child. Since the petitions contain
    the same allegations, we will refer to them collectively as one petition.
    2
    alleged that the children’s mother, V.J. (mother),3 knew or reasonably should have
    known that father struggled with substance abuse and failed to protect the children from
    being exposed to domestic violence in the home.
    The court held a hearing on August 7, 2019, found that a prima facie case had
    been established, and ordered the children detained from father. The court allowed the
    children to remain in mother’s custody on the condition that father not reside in the home
    or have contact with the children outside of county agency supervision.4
    Jurisdiction/Disposition
    The social worker filed a jurisdiction/disposition report on August 23, 2019,
    recommending that the court sustain the petition and provide mother with family
    maintenance services and father with reunification services. The social worker
    interviewed father. He admitted using methamphetamine and stated that he was using
    drugs two to three times a week. The social worker expressed her concern with father
    having access to child pornography and young children, including his own daughters, and
    stated that he appeared to be in denial about his child pornography problem. However,
    he did have insight about his drug use and the role it had in the removal of the children
    from his care. He said he began using methamphetamine at age nine, and he started
    3   Mother is not a party to this appeal.
    4  We note the detention report reflects that the social worker recommended the
    children to remain with mother on the condition that mother not reside in the home.
    However, this appears to be an error since the recommendation was to remove the
    children from father’s custody.
    3
    manufacturing it at age 13. He reported that by age 16, he had 32 juvenile felony
    charges.
    The social worker attached a case plan for father, which required him to
    participate in a domestic violence program and counseling, complete a parenting
    education program and an anger management program, complete an outpatient substance
    abuse program, and comply with random and/or on-demand substance abuse testing.
    The court held a jurisdiction/disposition hearing on August 28, 2019. The parties
    agreed to amend father’s case plan to include addressing anger management in his
    counseling, rather than as a separate requirement. The court found that the children came
    within section 300, subdivisions (b) and (d), and declared them dependents. It adopted
    the recommended findings and orders, approved the case plan, and ordered mother to
    participate in family maintenance services and father to participate in reunification
    services.
    Section 364 Status Review
    The social worker filed a status review report on February 20, 2020,
    recommending that the children remain in mother’s home and the dependency be
    continued. The social worker reported that prior to December 2019, father was not in
    contact with CFS. He did not follow through with service referrals or arranged
    appointments for substance abuse treatment, counseling, domestic violence, and
    parenting education. Since December 2019, father had been in communication with CFS
    and was referred again for all services. The social worker specifically reported that he
    was referred for substance abuse services at Inland Valley Recovery Services (IVRS) on
    4
    August 23, 2019, with a start date of September 6, 2019. However, he did not follow
    through with any treatment services. He was again referred on January 7, 2020, with
    services to begin on January 13, 2020. The social worker requested, but did not receive,
    an update from IVRS on his attendance and participation in outpatient services.
    Father was also referred to Youth Hope Agency for a domestic violence program,
    a parenting education program, and counseling with a start date of September 30, 2019.
    However, he failed to follow through with the services. He was then referred for services
    with Asante Family Services to begin in February 2020. He attended on February 3,
    2020, but failed to show up on February 10, 2020.
    The social worker further reported that father signed an acknowledgment that the
    court ordered him to randomly drug test through the color code system in October 2019.
    On December 19, 2019, he admitted to the social worker that he had not been calling in
    to the color code system, and he was still using methamphetamine. During that reporting
    period, he had been called to test eight times, and he was a “no show” each time.
    The social worker also reported that father had been staying with various
    individuals, sleeping on the streets, and staying in motels; however, she was concerned
    that he may have been living with mother and the children.
    The social worker opined that a substantial risk of detriment remained if the
    children were returned to father’s care due to his noncompliance with drug testing,
    substance abuse treatment, domestic violence classes, and counseling. The social worker
    stated that although he had made minimal progress during that reporting period, he had
    begun services and was cooperative with CFS; thus, she recommended he continue the
    5
    court-ordered services. The social worker also updated the case plan to add the
    requirement that father attend a 12-step program.
    The court held a review hearing on February 27, 2020, and adopted the social
    worker’s findings and recommendations and continued the children as dependents.
    Supplemental Section 387 Petition
    The social worker filed a supplemental section 387 petition on August 18, 2020,
    alleging that mother violated court orders by allowing father into the home, that she
    refused CFS access to the children, neglected the children’s medical care, and kept the
    home in an unsanitary and hazardous state. The social worker thus recommended that the
    children be placed in foster care. In a detention report, the social worker reported that
    father had not completed any of the court-ordered services and only drug tested once in
    July 2019, at which time he tested positive for methamphetamine. Furthermore, on June
    29, 2020, mother admitted that father’s visits were occurring in the home, with her
    parents supervising. Mother had been warned every month by the social worker that he
    should not be given access to the children without a visit supervisor present, and that he
    should not be in the home. The social worker recommended that both father and mother
    (the parents) not receive reunification services.
    The court held a detention hearing on August 19, 2020, and found that a prima
    facie case had been established for removal. The court removed the children from
    mother’s custody and detained them in foster care. The court then continued the matter
    for a jurisdiction/disposition hearing.
    6
    Jurisdiction/Disposition
    The social worker filed a second jurisdiction/disposition report on September 3,
    2020, recommending that the court sustain the section 387 petition and the children be
    placed in out-of-home care with family reunification services for mother, but no services
    for father. The social worker reported that the previous disposition had not been effective
    since mother failed to take adequate measures to protect the children. She allowed father
    to move back into the home and have unauthorized access to the children, despite the
    court ordering him to only have supervised visits and not be in her home. She also
    neglected the children’s medical care and had not provided a safe and sanitary home for
    them.
    The social worker reported that she signed the parents up for on-demand testing on
    August 14, 2020. They missed the drug test even though they were notified that any
    missed tests would be considered a positive test. The court then ordered on-demand
    testing, and they missed the test again on August 19, 2020.
    The social worker also stated she received a police report dated April 24, 2020,
    stating that father was arrested for being in possession of a methamphetamine pipe.
    (Health & Saf. Code, § 11364, subd. (a).) Father told the police he did not use
    methamphetamine every day, but he had used earlier that day.
    The social worker recommended that father be denied reunification services under
    section 361.5, subdivision (b)(10) and (b)(13), since he failed to participate in the
    reunification services that were offered to him and failed to demonstrate a lifestyle free
    from substance abuse. She reported that she had attempted to call both parents and leave
    7
    voicemails and text messages, but father changed his phone number. The social worker
    stated that the parents had been evasive and untruthful with CFS.
    The court held a jurisdiction/disposition hearing on the section 387 petition on
    September 9, 2020. The parents failed to appear, but they were represented by counsel.
    Father’s counsel reported that he had talked to father on the day of the detention hearing
    and informed him of the next court date, but he had not been able to contact him since
    then. The court sustained the allegations in the section 387 petition and continued the
    children as dependents. In her report, the social worker recommended that the court
    bypass father’s services under section 361.5, subdivision (b)(10) and (b)(13). However,
    at the hearing, she asked the court to strike the written allegations under 361.5,
    subdivision (b)(10) and (b)(13), and just find that services should not be provided to him
    since he “timed out.” After some discussion, the court stated that it could not terminate
    services because father “timed out” and noted because the children were initially not
    removed from mother’s custody, father had “discretionary services, not statutory
    services.” However, it found that section 361.5, subdivision (b)(13), was an appropriate
    bypass provision and that it applied here. Thus, the court denied father services finding
    that he had a history of extensive and chronic use of drugs and had failed or refused to
    comply with a program of drug treatment described by the case plan on at least two prior
    occasions, even though the programs identified were available and accessible.
    8
    DISCUSSION
    Substantial Evidence Supports the Court’s Order Denying Father Reunification Services
    Father argues that the court made a mistake of law when it applied his failure to
    participate in voluntary enhancement services that “came into being after the filing of the
    dependency petition” to the bypass provision under section 361.5, subdivision (b)(13). In
    other words, he claims that the court ordered enhancement services, not reunification
    services, and such enhancement services did not qualify under the statute since they were
    not ordered prior to the filing of the dependency. He further claims they were voluntary
    in nature and did not constitute the “court-ordered services” required under the statute.
    Father then contends that it was in the children’s best interests to have an opportunity to
    reunify with both parents since he was the presumed father, mother was offered
    reunification services, this was the first time the children had come to the juvenile court’s
    attention, and because denying him services “was not in line with legislative purpose and
    priority of reunification.” Father additionally claims that his equal protection rights were
    violated since he was treated differently from other presumed fathers. We conclude the
    court properly bypassed his reunification services under section 361.5, subdivision
    (b)(13).
    A. Standard of Review
    “Ordinarily, when a child is removed from parental custody, the juvenile court
    must order services to facilitate the reunification of the family. [Citation.]
    ‘ “Nevertheless, as evidenced by section 361.5, subdivision (b), the Legislature
    recognizes that it may be fruitless to provide reunification services under certain
    9
    circumstances. [Citation.] Once it is determined one of the situations outlined in
    subdivision (b) applies, the general rule favoring reunification is replaced by a legislative
    assumption that offering services would be an unwise use of governmental resources.” ’
    [Citation.] An order denying reunification services is reviewed for substantial evidence.”
    (R.T. v. Superior Court (2012) 
    202 Cal.App.4th 908
    , 914 (R.T.).) “ ‘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.’ ” (Francisco G. v. Superior Court (2001) 
    91 Cal.App.4th 586
    , 600.)
    B. The Court Properly Applied Section 361.5, Subdivision (b)(13)
    Section 361.5, subdivision (b)(13), authorizes a juvenile court to deny services to a
    parent when he “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, or has failed or refused to comply with a program of drug or alcohol treatment
    described in the case plan required by Section 358.1 on at least two prior occasions, even
    though the programs identified were available and accessible.” (§ 361.5, subd. (b)(13),
    italics added.) Section 361.5, subdivision (b)(13), “ ‘reflect[s] a legislative determination
    that an attempt to facilitate reunification between a parent and child generally is not in the
    minor’s best interests when the parent is shown to be a chronic abuser of drugs who has
    resisted prior treatment for drug abuse.’ [Citation.] Experience tells us that such a parent
    10
    has a high risk of reabuse. [Citation.] This risk places the parent’s interest in reunifying
    with her child directly at odds with the child’s compelling right to a ‘placement that is
    stable, permanent, and that allows the caretaker to make a full emotional commitment to
    the child.’ ” (In re William B. (2008) 
    163 Cal.App.4th 1220
    , 1228.)
    Father does not dispute that he has a history of extensive, abusive, and chronic use
    of drugs as specified by section 361.5, subdivision (b)(13). Instead, he argues the court
    erred in applying the subdivision here since there is no evidence he resisted court-ordered
    treatment during a three-year period immediately prior to the filing of the petition.
    However, section 361.5, subdivision (b)(13), may be satisfied by showing either
    resistance to court-ordered treatment during the three years prior to the filing of the
    petition or failure or refusal to comply with a program of drug treatment described in the
    case plan required by section 358.1. (§ 361.5, subd. (b)(13).) Section 358.1 lists the
    information that should be in the social study required by section 358 and requires a
    social worker’s report to discuss “[w]hat plan, if any, for return of the child to his or her
    parents and for achieving legal permanence for the child if efforts to reunify fail, is
    recommended to the court by the county welfare department or probation officer.”
    (§ 358.1, subd. (b).) This subdivision refers to return of the child and the options that
    may exist for permanency if reunification efforts fail. Since the plan referred to in
    section 358.1 is a reunification plan, the second prong of section 361.5, subdivision
    11
    (b)(13), permits a bypass of services when a parent fails to comply with services offered
    as a part of a reunification plan on at least two occasions.5
    Here, the court bypassed father’s services under the second prong of section 361.5,
    subdivision (b)(13), not both prongs, as father discusses extensively. The court
    specifically found that he “failed or refused to comply with a program of drug []
    treatment described by the Case Plan on at least two prior occasions, even though the
    programs identified were available and accessible.” The record shows that the court
    approved the case plan and ordered father to participate in reunification services at the
    original jurisdiction/disposition hearing on August 28, 2019. His initial case plan
    included the requirements that he complete an outpatient substance abuse program and
    comply with random and/or on-demand substance abuse testing. At the section 364
    status review hearing, the court found Father had failed to participate in his reunification
    services and had made minimal progress. Father conceded he was still using
    methamphetamine and all eight of his random drug tests were “no-shows.” Father did
    not follow-through with substance abuse treatment, a domestic abuse program, parenting
    education or individual therapy. Father did claim to have signed up for a 12-step
    program; however, he provided no evidence of signed 12-step attendance cards. The
    5 We note father’s claim that “two prior occasions” means two prior dependency
    cases. However, the language of the statute only says the parent must have “failed or
    refused to comply with a program of drug or alcohol treatment described in the case plan
    required by Section 358.1 on at least two prior occasions.” (§ 361.5, subd. (b)(13), italics
    added.) It says nothing about two prior dependency cases.
    12
    juvenile court approved and ordered a second “updated” case plan (adding the 12-step
    program for substance abuse).
    Later, at the hearing on the section 387 petition, the court found Father’s progress
    with reunification services had “been absent.” Thus, the evidence clearly shows that on
    two separate occasions father failed to comply with the reunification services requiring
    substance abuse treatment ordered by the court as required by section 361.5, subdivision
    (b)(13). He was referred for substance abuse services on August 23, 2019, but he did not
    follow through with any treatment services. Furthermore, although he was ordered to
    randomly drug test through the color code system, he admitted to the social worker that
    he was not calling in to the color code system and was still using methamphetamine. He
    was scheduled to test eight times and failed to appear each time. As of September 9,
    2020, the social worker reported that father still had not completed any services, and he
    only drug tested once in July 2019, when he tested positive for methamphetamine.
    Therefore, the evidence was sufficient to support the court’s bypass of father’s services
    under section 361.5, subdivision (b)(13).
    Father claims that the court bypassed his reunification services under section
    361.5, subdivision (b)(13), “without giving any reasonable explanation or grounds” for
    finding the statute applicable. However, at the hearing, the court stated that it initially
    “scratched out” the finding (written in the social worker’s report) that father “has a
    history of extensive, abusive, and chronic use of drugs or alcohol; has failed or refused to
    comply with a program of drug [] treatment described by the Case Plan on at least two
    prior occasions, even though the programs identified were available and accessible.”
    13
    However, the court said, “. . . but I reinstated it, and I’m making that (b)13 finding. I did
    it orally, and [I’m] also initialing it indicating that [it] does apply.” It then expressly
    adopted the social worker’s recommended findings and orders.
    Father also claims the court found he was only offered discretionary enhancement
    services, and such services did not qualify under section 361.5, subdivision (b)(13), since
    they were not ordered prior to the filing of the dependency petition, and they were
    voluntary in nature. However, his argument is mistakenly referring to the first prong of
    the subdivision, which states that the parent has to have “resisted prior court-ordered
    treatment for this problem during a three-year period immediately prior to the filing of
    the petition.” (§ 361.5, subd. (b)(13).) As discussed ante, the court did not rely on that
    prong of the subdivision in denying father services. Although it is unclear what the court
    meant when it said father had “discretionary services, not statutory services,” it properly
    bypassed father’s reunification services pursuant to the second prong of section 361.5,
    subdivision (b)(13). (See ante.) Moreover, contrary to father’s characterization that the
    services ordered were discretionary enhancement services, the record demonstrates that
    the court ordered him to participate in reunification services.
    C. Father Has Not Shown It Was in the Children’s Best Interests to Order
    Reunification Services
    Father argues that it was in the children’s best interests to have an opportunity to
    reunify with both of their parents, noting that the court ordered reunification services for
    mother. He asserts that he was a presumed father, he and mother wanted to remain a
    married couple, and to deny him reunification services was “not in line with” the
    14
    legislative priority of reunification. Father has not shown that it was in the children’s
    best interests to order reunification services for him.
    Section 361.5, subdivision (c)(2), provides that the court shall not order
    reunification for a parent described in subdivision (b)(13) “unless [it] finds, by clear and
    convincing evidence, that reunification is in the best interest of the child.” None of the
    reasons listed by father establish that it was in the children’s best interests to reunify with
    him. Once the court determined that section 361.5, subdivision (b)(13), applied, “ ‘ “the
    general rule favoring reunification [was] replaced by a legislative assumption that
    offering services would be an unwise use of governmental resources.” ’ ” (R.T., supra,
    202 Cal.App.4th at p. 914.) In view of the fact that father was already provided with
    referrals for services and failed to participate in or complete any of the programs, offering
    more services to him would certainly be an unwise use of governmental resources.
    D. Father Has Not Established a Violation of Equal Protection Rights
    Father claims that “for the same reasons argued above,” his equal protection rights
    under the federal and state Constitutions were violated. He argues that he is similarly
    situated to other presumed fathers who are entitled to reunification services and
    essentially claims that his equal protection rights were violated “by the [court’s] mistaken
    application of the law.” Father’s contention that the court misapplied section 361.5,
    subdivision (b)(13), to his case is without merit, thus, invalidating his equal protection
    claim. (See § B., ante.)
    Ultimately, the court properly applied section 361.5, subdivision (b)(13), here and
    there was sufficient evidence to support its decision to bypass father’s services.
    15
    DISPOSITION
    The judgment is affirmed.
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    FIELDS
    J.
    We concur:
    CODRINGTON
    Acting P. J.
    SLOUGH
    J.
    16
    

Document Info

Docket Number: E075825

Filed Date: 6/11/2021

Precedential Status: Non-Precedential

Modified Date: 6/11/2021