Filed 11/7/13 In re K.P. CA5



                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT


In re K.P. et al., Persons Coming Under
the Juvenile Court Law.


FRESNO COUNTY DEPARTMENT OF                                                            F066883
SOCIAL SERVICES,
                                                                    (Super. Ct. Nos. 07CEJ300173-1 &
         Plaintiff and Respondent,                                           07CEJ300173-2)

                   v.
KEVIN P.,                                                                           OPINION

         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from orders of the Superior Court of Fresno County. Mary Dolas,
Judge.
         Gino de Solenni, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel,
for Plaintiff and Respondent.

                                                        -ooOoo-

*        Before Levy, Acting P.J., Kane, J., and Franson, J.
          Kevin appeals from the juvenile court’s dispositional orders denying him
reunification services under Welfare and Institutions Code section 361.5,
subdivision (b)(10) and (13)1 as to his 12-year-old son and 11-year-old daughter. We
affirm.
                      PROCEDURAL AND FACTUAL SUMMARY
          These dependency proceedings mark the second time the Fresno County
Department of Social Services (department) had to intervene to protect Kevin’s son and
daughter. The first intervention occurred in 2007 when the department received a report
that the family, Kevin, the children’s mother, and the children, then five and four years of
age, were living in a “drug house.” Both parents admitted using drugs and Kevin’s drug
use was extensive. He said he used every drug except heroin, had 4,000 hits of LSD and
used cocaine on the day the children were taken into protective custody. He also stated
he had been in four inpatient and two outpatient substance abuse programs. The children
stated they saw Kevin hit their mother in the face, causing a bruised eye, and saw her
hold a butcher knife to Kevin’s throat.
          The juvenile court exercised its dependency jurisdiction over the children and
denied Kevin reunification services under section 361.5, subdivision (b)(13) because of
his extensive, abusive and chronic use of drugs and alcohol. The juvenile court provided
the mother reunification services and returned the children to her custody in August 2008,
granting her sole legal and physical custody. The juvenile court granted Kevin
reasonable supervised visitation.




1     All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.


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       Over the next two years, the mother violated the juvenile court’s visitation order
by allowing Kevin unsupervised contact with the children. In late 2010, she left them in
his care and did not return.
       Meanwhile, Kevin continued to abuse drugs. In June 2012, he was convicted of
possession of a controlled substance for sale and sentenced to over 10 months in jail.
Prior to his incarceration, he married Megan B., a friend, so she could care for the
children. Megan used methamphetamine and heroin intravenously and while caring for
the children, developed an abscess on her leg that was so severe it prevented her from
walking. She began to urinate and defecate in buckets and cups and could no longer cook
or clean for the children or take them to school. Kevin’s daughter tried to help Megan by
cleaning the floor of the pus and blood from Megan’s abscess.
       In September 2012, Megan was admitted to the hospital, leaving the children alone
in the apartment where Megan had drugs in containers on her bed and a box of needles.
       The department took the children, then 10 and 9 years of age, into protective
custody and placed them with their paternal aunt.
       In February 2013, the juvenile court convened a contested hearing on the
department’s recommendation to exercise its dependency jurisdiction and deny Kevin
reunification services under section 361.5, subdivision (b)(10) and (13). Kevin’s then 10-
year-old daughter testified that Megan was using drugs. Asked how she knew that, the
daughter said Megan had “dots on her arms” and had a drawer the children were not
allowed to look in. She said Megan had the “dots” when they first met her. She also said
she heard a conversation between her father and his friend, James, in which James told
Kevin that Megan was using drugs and would cause the children to be put in foster care.
The daughter could not remember seeing Kevin or Megan using drugs but saw lighters
and broken pens with no ink.



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       Kevin’s 11-year-old son testified he never saw Megan using drugs and did not
hear the conversation with James.
       Kevin testified he never saw Megan use drugs intravenously and never saw any
track marks on her body. The only drug he saw her use was marijuana. He said James
told him Megan was “messed up” referring to her emotional state after her parents kicked
her out of the house. Following Kevin’s testimony, the juvenile court continued the
hearing.
       In March 2013, the juvenile court reconvened the contested hearing, heard
argument and ruled. The juvenile court adjudged the children dependents of the court,
ordered them removed from parental custody and denied Kevin reunification services
under section 361.5, subdivision (b)(10) and (13). The juvenile court ordered
reunification services for the mother and set a six-month review hearing for August 2013.
This appeal ensued.
                                      DISCUSSION
       Kevin contends the juvenile court erred in denying him reunification services
under section 361.5, subdivision (b)(10) because it did not apply. Alternatively, he
contends the juvenile court abused its discretion in denying him reunification services
under subdivision (b)(10) and (13) because reunification with him served the children’s
best interests.
       The juvenile court is required to order family reunification services whenever a
child is removed from parental custody unless the court finds by clear and convincing
evidence that the child is described by any of 16 exceptions set forth in section 361.5,
subdivision (b). (§ 361.5, subds. (a) & (b)(1)-(16).) In this case, the juvenile court
denied Kevin reunification services based on subdivision (b)(10) which pertains to a
parent whose reunification services as to a sibling were terminated and subdivision
(b)(13) which pertains to a parent with a chronic and extensive substance abuse problem

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who resisted treatment. Section 361.5, subdivision (b)(10) and (13) provide in relevant
part:

        “(b) Reunification services need not be provided to a parent … described
        in this subdivision when the court finds, by clear and convincing evidence,
        …: [¶] … [¶] (10) [t]hat the court ordered termination of reunification
        services for any siblings … of the child because the parent … failed to
        reunify with the sibling … [and the] parent … has not subsequently made a
        reasonable effort to treat the problems that led to removal of the sibling …
        of that child from that parent …[;] [¶] … [¶] (13) [t]hat the parent … 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, or has failed or refused to comply
        with a program of drug or alcohol treatment … on at least two prior
        occasions, even though the programs identified were available and
        accessible.”
        Kevin contends section 361.5, subdivision (b)(10) does not apply because the
juvenile court never ordered reunification services for him, therefore, services were not
terminated. Assuming for the sake of argument, Kevin is correct and subdivision (b)(10)
does not apply, we would not find error in the juvenile court’s application of the statute
because the juvenile court also denied Kevin services under subdivision (b)(13) which he
does not challenge.
        Kevin next contends that, even if the requirements of section 361.5,
subdivision (b)(13) were met, the juvenile court abused its discretion in failing to order
reunification services anyway under section 361.5, subdivision (c). It is true that a parent
described in subdivision (b)(13) may still obtain reunification services if the parent
proves that services would be in the child’s best interests. Section 361.5, subdivision (c)
provides in relevant part: “The court shall not order reunification for a parent …
described in paragraph … (13) … of subdivision (b) unless the court finds, by clear and
convincing evidence, that reunification is in the best interest of the child.” It is the



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parent’s burden to demonstrate that reunification services would be in the minor’s best
interests. (In re Ethan N. (2004) 122 Cal.App.4th 55, 66 (Ethan N.).)
       In Ethan N., this court listed various factors relevant to the determination of a
child’s best interest vis-à-vis reunification. Those factors include the gravity of the
problem requiring juvenile court intervention, the strength of the parent/child bond and
the child’s need for stability and continuity. (Ethan N., supra, 122 Cal.App.4th at pp. 66-
67.)
       Kevin argues the Ethan N. factors cited above when applied to the evidence on the
record compel a finding in his favor. Specifically, he argues that leaving the children
with an intravenous drug user is not as grave as other reasons for removing children such
as the death of a sibling as was the case in Ethan N. (Ethan N., supra, 122 Cal.App.4th at
p. 59.) He further argues the children were bonded to him and wanted to return to his
custody and providing him services would not delay permanency planning for them since
their mother was going to receive reunification services.
       As we stated in Ethan N., “The concept of a child’s best interest ‘is an elusive
guideline that belies rigid definition. Its purpose is to maximize a child’s opportunity to
develop into a stable, well-adjusted adult.’ [Citation.]” (Ethan N., supra, 122
Cal.App.4th at p. 66.) As this case demonstrates, however, a child’s best interest cannot
be rightly determined without full consideration of all relevant information. If such were
not the case, Kevin’s argument would appear to have merit since the evidence he cites
positively supports the Ethan N. factors he selected.
       In this case, it was not in the children’s best interest to reunify with Kevin because
he abused drugs and could not care for them. He not only exposed them to his drug use
but immersed them in the lifestyle. They were at times homeless and in the end were
essentially caring for an intravenous drug user. Moreover, there was no reason to



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believe, given Kevin’s treatment failure, that he would rehabilitate himself and make a
safe home for his children.
      We find no error.
                                    DISPOSITION
      The dispositional orders entered on March 7, 2013, are affirmed.




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