Filed 8/10/15 In re Miracle H. 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 MIRACLE H., a Person Coming Under the
Juvenile Court Law.

FRESNO COUNTY DEPARTMENT OF                                                                F070687
SOCIAL SERVICES,
                                                                           (Super. Ct. No. 14CEJ30036-2)
    Plaintiff and Respondent,

    v.                                                                                   OPINION
I.H. et al.,

    Defendants and Respondents;

MIRACLE H.,

    Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Brian M.
Arax, Judge.
         M. Elizabeth Handy for Appellant.
         Daniel C. Cederborg, County Counsel, and David F. Rodriguez, Deputy County
Counsel, for Plaintiff and Respondent.


*        Before Gomes, Acting P.J., Detjen, J. and Franson, J.
                                           -ooOoo-
       Minor Miracle H. challenges the juvenile court’s dispositional order granting
reunification services to her father, I.H. (father). Although the social worker
recommended father not be offered reunification services and both minor’s counsel and
the Fresno County Department of Social Services (department) agreed, the juvenile court
ordered reunification services. Minor’s sole contention on appeal is that the juvenile
court’s order of reunification services to father was not supported by the evidence and
constitutes an abuse of discretion. We agree and reverse.
                     FACTUAL AND PROCEDURAL SUMMARY
       Minor was born in September of 2010. In January of 2014, minor and her older
half sibling K.B. were removed from the care of their mother (mother) after paramedics
responded to mother’s call that she found her one-year-old son, D.B., Jr., dead.1 The
preliminary cause of death was “sudden unexplained death,”2 but mother admitted she
had been using drugs the night before, was sleeping on the couch with the child, and may
have rolled over him. Mother had a lengthy child welfare history with 10 referrals since
2009 relating to mother’s lack of supervision, domestic violence, substance abuse and
mental health issues. Father, who was no longer in a relationship with mother, was
incarcerated at the time minor was detained.




1      K.B. and the deceased child, D.B., Jr., have the same father, D.B., Sr. K.B. is not
a subject party at issue in this appeal, and neither mother nor D.B., Sr., are a party to this
appeal.
2       The protracted dependency timeline in this case is largely due to a delay in
autopsy results. Those results, dated November 8, 2014, list the manner of death as
“natural,” and the cause of death as “sudden unexplained death in an infant.” The report
also stated that “hypertrophic heart disease” was a condition which independently
contributed to the cause of death. No drugs or alcohol were found in the body.


                                              2.
       The department filed a Welfare and Institutions Code section 3003 petition in
February of 2014 on behalf of minor and K.B. alleging that the children were at risk of
harm due to mother’s substance abuse, mental illness and unstable housing (§ 300,
subd. (b)) and that mother had caused another child’s death through abuse or neglect
(§ 300, subd. (f)). The petition further alleged that D.B., Sr., should have known that
K.B. and D.B., Jr., were at risk of abuse in mother’s care and that he failed to protect
them (§ 300, subd. (b)). An amended petition added D.B., Sr., to the death through abuse
or neglect allegation (§ 300, subd. (f)).
       An second amended petition in March of 2014 alleged father failed to protect
minor from mother, that he should have known minor was not in a safe environment with
mother, and that minor would be at risk of abuse or neglect if left in father’s care (§ 300,
subd. (b)).
       At the scheduled jurisdiction hearing March 5, 2014, father, who was now in a
residential treatment program, denied the allegations against him and expressed interest
in custody of minor. The juvenile court elevated father to presumed father status, noted
that he was not involved in an active relationship with mother at the time the petition was
filed and was therefore a noncustodial parent, and ordered the department to assess father
for possible placement of minor.
       The June 10, 2014, report prepared for continued contested jurisdiction/disposition
recommended father be denied reunification services pursuant to section 361.5,
subdivision (b)(12)4, as he was convicted of 2nd degree robbery in April of 2009. The
department recommended that a section 366.26 permanent planning hearing be


3     All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
4      Section 361.5, subdivision (b)(12) provides that reunification services need not be
provided if the parent has been convicted of a violent felony, pursuant to Penal Code
section 667.5, subdivision (c).


                                             3.
scheduled. At the time of the report, father was again in jail because he left the treatment
program he had been in and failed to check in with his parole officer. The report further
stated father had been incarcerated for most of the first two years of minor’s life; he had
current substance abuse issues; he had a son removed from his custody in April of 2014
due to neglect; he had had a restraining order for domestic violence against mother until
August of 2013; domestic violence between father and mother had caused mother to go
into early labor with minor; and he had been on parole since 2012, violated parole and
probation several times and failed to complete a drug treatment program. Father visited
minor five times between February and April 2014, when he left the treatment program
and discontinued visits. The visits had not gone well. The minor cried and became upset
and the visits had to be cut short.
       On August 13, 2014, the juvenile court granted the department’s request that
father’s visits with minor be suspended as he was again in custody and “doesn’t seem to
be [able to] keep himself out of custody for more days at a time … and it’s not in the
child’s best interest .…” Father had been released from jail on or about August 3, 2014,
and rearrested three days later for violation of felony charges concerning drugs. Minor’s
therapist advised against visits with father during incarceration. The juvenile court stated
it would reassess the issue of visitation at a later date.
       A contested jurisdiction/disposition hearing was finally held December 16, 2014.
The department continued to recommend that services not be offered father under section
361.5, subdivision (b)(12). At the hearing, the social worker confirmed that father was
considered a “noncustodial” parent, that he was just recently out of custody and in a
treatment program, and he was requesting custody of minor. The social worker opined
that it would be detrimental to place minor with father due to his criminal domestic
violence charges, criminal history, and incarceration. The fact that father was now out of
custody did not change the social worker’s opinion that father be denied reunification
services, citing his past robbery conviction. The social worker acknowledged that she

                                               4.
had never discussed with father his March 2014 statements to a previous social worker
that he never witnessed mother taking prescription medication and never witnessed her
do anything that caused him concern about her ability to care for minor. Instead, the
social worker opined that father’s statements that he knew mother “had a lot of problems”
and that he and/or his own mother did not want to get involved meant that he knew of
mother’s mental health and substance abuse issues.
       In closing, counsel for the department argued that, based on all the information
that was available, father should have known of mother’s “substance abuse issues and the
like.” Counsel for minor argued that minor was doing well in her current placement and
that it would be detrimental to place her with father or to offer him services. Counsel for
minor noted that, during previous visits with father, minor had experienced “a lot of
emotional trauma to the point where minor’s therapist had requested that the visits be
suspended.”
       Counsel for father argued that father did not have actual knowledge of mother’s
mental health and substance abuse issues.
       The juvenile court found the record “absolutely replete, if not overwhelming, with
facts about mother’s really unfitness as a parent,” including the failure to maintain stable
housing, mental health issues, drug use and abuse, domestic violence, multiple partners,
prostituting, and an unhealthy and unsafe lifestyle. The juvenile court opined that father
should have known about mother’s extensive prior child welfare referrals involving
substantial neglect, including a referral made when father assaulted mother while she was
pregnant, resulting in her water breaking at a bus stop. That referral had included
allegations of domestic violence and drug and mental health issues and voluntary family
maintenance services were offered and accepted. The juvenile court found father’s
insistence that he was not aware of the severity of mother’s issues to have “little meaning
or import … in light of her other overall history already described ….”



                                             5.
       The juvenile court found true the allegation (§ 300, subd. (b)) that minor was at
risk of harm in that father failed to protect her. The department withdrew the allegations
(§ 300, subd. (f)) that mother caused the death of D.B., Jr., through abuse or neglect and
that D.B., Sr., failed to protect him.
       Minor was removed from mother’s physical custody. K.B. was removed from
mother and D.B., Sr.’s, custody. Mother and D.B., Sr., were granted reunification
services and supervised visits.
       As for father, the juvenile court noted that, while father had a criminal history
which would allow the court to deny him reunification services, the current dependency
was not a product of father’s actions, but instead “a failure to act” on his part. The
juvenile court also noted that father was currently in a program and making “a real
effort.” The juvenile court reasoned that, because services were going to be provided
mother and D.B., Sr., no permanency was being planned at that point. As such, the
juvenile court reasoned, denying father reunification services would “deny him not only
his sacred parenthood rights, but we also deny ourselves a concurrent planning option.”
The juvenile court concluded that, “when we look at best interest in that light, … two
parents getting services and a noncustodial parent who is in a service plan right now who
isn’t does not make sense to the Court. So I do find best interest to provide him services
as well .…”
       The juvenile court found it detrimental to place minor with father, but ordered
reunifications services and supervised visits be provided him. Father was to have
parenting, domestic violence, substance abuse, and mental health evaluation and
recommended treatment, and be required to provide random drug testing. The
department was asked to report in two weeks as to the appropriateness of the visits and
minor’s reaction to them.
       Minor now appeals from the December 16, 2014, order granting father
reunification services.

                                             6.
                                       DISCUSSION
       Minor contends that the juvenile court’s order of reunification services to father
was not supported by the evidence and constitutes an abuse of discretion. We agree.
       “As a general rule, reunification services are offered to parents whose children are
removed from their custody in an effort to eliminate the conditions leading to loss of
custody and facilitate reunification of parent and child. This furthers the goal of
preservation of family, whenever possible. [Citation.]” (In re Baby Boy H. (1998) 63
Cal.App.4th 470, 478.) “When a child is removed from the custody of his [or her]
parents, reunification services must be offered to the parents unless one of several
statutory exceptions applies.” (In re William B. (2008) 163 Cal.App.4th 1220, 1227;
§ 361.5, subd. (a).) Section 361.5, subdivision (b), sets forth certain exceptions, also
known as reunification bypass provisions, to this “general mandate of providing
reunification services.” (In re Joshua M. (1998) 66 Cal.App.4th 458, 470.) The juvenile
court is not required to distinguish between a custodial and noncustodial parent when
ordering or bypassing reunification services for a child in out-of-home placement. (In re
Adrianna P. (2008) 166 Cal.App.4th 44, 57.)
       Section 361.5, subdivision (b), “reflects the Legislature’s desire to provide
services to parents only where those services will facilitate the return of children to
parental custody.” (In re Joshua M., supra, 66 Cal.App.4th at p. 470; see also In re Baby
Boy H., supra, 63 Cal.App.4th at p. 478 [in section 361.5, subdivision (b), the Legislature
“recognize[d] that it may be fruitless to provide reunification services under certain
circumstances”].) When the juvenile court determines one or more of the exceptions or
bypass provisions apply, “the general rule favoring reunification is replaced by a
legislative assumption that offering services would be an unwise use of governmental
resources. [Citation.]” (Baby Boy H., supra, at p. 478; see also Renee J. v. Superior
Court (2001) 26 Cal.4th 735, 744; In re Ethan N. (2004) 122 Cal.App.4th 55, 65.)



                                              7.
       Section 361.5, subdivision (b)(12) provides that reunification services need not be
provided to a parent where the parent has been convicted of a “violent felony” within the
meaning of Penal Code section 667.5, subdivision (c). (See In re James C. (2002) 104
Cal.App.4th 470, 485 [denial of reunification services pursuant to § 361.5, subd. (b)(12)
is proper where the father was convicted of two violent felonies, including robbery and
firearm use].) Here, father was convicted of 2nd degree robbery in April of 2009.
Robbery is a “violent felony” pursuant to Penal Code section 667.5, subdivision (c)(9).
       However, “[s]ection 361.5, subdivision (c) enables a parent to obtain reunification
services notwithstanding section 361.5[,subdivision] (b)(12) where the parent
demonstrates reunification is in the child’s best interest by offering evidence of, among
other things, his or her current ability to parent. To determine whether reunification is in
the child’s best interest, the court considers the parent’s current efforts, fitness and
history; the seriousness of the problem that led to the dependency; the strength of the
parent-child and caretaker-child bonds; and the child’s need for stability and continuity.
[Citation.]” (In re Allison J. (2010) 190 Cal.App.4th 1106, 1116.) “A best interest
finding requires a likelihood reunification services will succeed; in other words, ‘some
“reasonable basis to conclude” that reunification is possible .…’” (Ibid.)
       It should be noted, however, that the factors listed above are not exhaustive. It has
long been recognized that 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.” (Adoption of Michelle T. (1975) 44 Cal.App.3d 699,
704.) Thus, additional factors may bear upon the court’s best interest finding, depending
upon the circumstances of the case.
       Hence, under section 361.5, subdivision (c), the juvenile court “shall not order
reunification for a parent” described in, inter alia, section 361.5, subdivision (b)(12)
“unless the court finds, by clear and convincing evidence, [and the parent affirmatively
demonstrates] that reunification is in the best interest of the child.” (§ 361.5, subd. (c);

                                               8.
see also In re Ethan N., supra, 122 Cal.App.4th at p. 64; In re William B., supra, 163
Cal.App.4th at p. 1227 [“‘“[o]nce it is determined one of the situations outlined in
[section 361.5,] 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.]” [Citation.]’ The burden is on the parent to change
that assumption and show that reunification would serve the best interests of the child.”].)
       The juvenile court has broad discretion in determining whether the parent has met
this burden and therefore whether to offer the parent reunification services under
subdivision (c). (In re Angelique C. (2003) 113 Cal.App.4th 509, 523.) An appellate
court may not disturb the court’s best interest determination absent a showing of an abuse
of discretion. (Id. at pp. 523-524.) An abuse of discretion is shown when there is no
substantial evidence to uphold the findings. (In re Ethan N., supra, 122 Cal.App.4th at
pp. 64-65.) In this case, we conclude that the juvenile court’s finding that reunification
services would be in minor’s best interests is not supported by the evidence and that the
juvenile court abused its discretion in ordering those services be provided.
       Here, the juvenile court did not specifically state how it weighed the various
criteria in determining whether reunification was in minor’s best interest. (In re Allison
J., supra, 190 Cal.App.4th at p. 1116.)
       In determining whether reunification services should be offered father, the
juvenile court characterized father as “not a direct actor” or one “who wasn’t directly
involved in [the] jurisdictional facts” of minor’s dependency, although the juvenile court
acknowledged that father failed to act when he should have. The juvenile court noted
that, although father claimed not to have seen mother do anything that would cause
concern in the care of minor, that statement had “little meaning or import” based on the
numerous previous referrals involving mother, some which involved father as well.
Thus, while the juvenile court addressed the seriousness of the problem leading to
minor’s removal, it gave it little weight.

                                             9.
         As for father’s current efforts, fitness and history, we question the juvenile court’s
assessment that father was “making a real effort” in his current treatment program. The
juvenile court was, in its own words, aware of father’s “definite and distinct criminal
history,” as well as repeated incarcerations and attempts and failures at rehabilitation. The
record shows that father failed to complete a drug treatment program in July of 2013, and
the same month, was charged with assault with a deadly weapon. A month later, he was
charged with battery and failure to comply with drug treatment. In December 2013, he
was charged with absconding supervision and possession of a deadly weapon. Father
was incarcerated again around the time minor was detained in January of 2014. Upon
release in February of 2014, father was given a residential rehabilitation program as part
of probation and started to visit minor, but he violated probation, was charged with
methamphetamine use, and was back in prison and visits suspended. He was in custody
until just before the jurisdiction/disposition hearing in December of 2014.
         Father’s current participation in a treatment program was, as noted by the juvenile
court, “under criminal threat. If he doesn’t, he’ll go back to custody.” The current
program was a year-long program and, at the time of the hearing, father had only been
there for eight days. After the numerous and repeated failures by father at rehabilitation,
being in a program for little more than a week is not a factor weighing heavily in father’s
favor.
         Although the juvenile court considered the bond between minor and father, it
acknowledged that the bond “not very great,” due to father’s repeated incarcerations and
attempts at treatment. Evidence before the juvenile court was that father was convicted
of second degree robbery in 2009 and sentenced to three years in prison in January of
2011, and thus was incarcerated for most of the first two years of minor’s life. Father had
a restraining order in place after he was released and until August of 2013, which father
claimed made it difficult for him to have contact with minor, although he claimed to have
had a birthday party for minor when she was two. Although father claimed to have

                                               10.
attempted to file custody paperwork for minor when he was released in February of 2014,
he did not follow through.
       Minor did not mention father when she was interviewed by a social worker after
being detained. Visits between father and minor a few months after detention were
strained and minor did not respond well. She became upset and cried when she saw
father, and the visits had to be ended early. Minor would cling to anyone except father.
By April of 2014, with the help of a social worker, minor began to feel a bit more secure
at visits, but father stopped visiting because he left treatment, was again arrested and back
in jail. Minor’s therapist noted minor was “hyper-vigilant and tense” and “markedly
anxious during interactions with her father.” The therapist opined that continued visits
with father while incarcerated were not in minor’s best interests and could have the
potential to be detrimental. At the hearing, minor’s counsel opined minor would
experience detriment if she were placed with or if services were offered father. Counsel
noted that previous visits with father had caused “a lot of emotional trauma.”
       Finally, the juvenile court failed to consider the bond between minor and her
caretaker or minor’s need for stability and continuity. Minor was described as being in a
stable placement; she had met her therapy goals; she was doing well in school; and she
was placed with a half brother with whom she was bonding5; she called her care provider
“mom”; and she felt loved and accepted.
       In making its order granting father reunification services, the juvenile court noted
that it did so in part because mother and D.B., Sr., would be provided services “so it’s not
like we’re moving to permanency planning right now anyhow.” The juvenile court went
on to state that denying father reunification would “deny him not only his sacred
parenthood rights, but we also deny ourselves a concurrent planning option.” Thus,

5      The record shows that father has a son, L., who was removed from his custody in
April of 2014, due to father’s drug use and failure to protect L. from L.’s mother. L. was
placed with a maternal relative, and minor was subsequently placed there as well.


                                            11.
based on the court’s statements, it appears that it focused primarily on the best interests of
father and the convenience of the court, as opposed to the best interests of minor.
       Section 361.5, subdivision (b)(12) allows the juvenile court to bypass reunification
services where the parent has committed a “violent felony” pursuant to Penal Code
section 667.5, subdivision (c), and where the parent has not established by clear and
convincing evidence that reunification would be in the best interest of the child. (§ 361.5,
subd. (c).) Section 361.5, subdivision (b)(12), “represents a reasonable and rational
means to advance a prime purpose of juvenile court law – providing protection and
stability to dependent children in a timely fashion – by effectively allocating scarce
reunification services.” (In re Joshua M., supra, 66 Cal.App.4th at p. 473.)
       We find the juvenile court’s order of reunification services to father is not
supported by substantial evidence and constitutes an abuse of discretion. There simply
was not “clear and convincing evidence” that reunification was in minor’s best interests,
or any evidence that reunification was “possible.” (In re William B., supra, 163
Cal.App.4th at pp. 1229-1230.)
                                      DISPOSITION
       The order of the juvenile court granting reunification services to father is reversed
and the matter is remanded. The juvenile court is directed to enter an order terminating
reunification services; the department is directed to set this matter for a hearing pursuant
to Welfare and Institutions Code section 361.5, subdivision (f) as soon as possible.




                                             12.
