Filed 6/26/14 In re Christian T. CA2/6

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


In re CHRISTIAN T. et al., Persons                                          2d Juv. No. B253250
Coming Under the Juvenile Court Law.                                 (Super. Ct. Nos. J066537, J068260)
                                                                              (Ventura County)

VENTURA COUNTY HUMAN
SERVICES AGENCY,

     Plaintiff and Respondent,

v.

TERESA T.,

     Defendant and Appellant.



                   Teresa T. (Mother) appeals the juvenile court's order denying her request
for a court order requiring Ventura County Human Services Agency (HSA) to provide
services that would reunify her with Christine T. and Jasmine T. ― two of her six
children. Mother does not contest the jurisdictional findings of the juvenile court and
concedes that two or more of the exceptions to the rule requiring reunification services
apply to her. Mother nevertheless contends that the juvenile court should have provided
her reunification services because doing so is in the best interests of the children. We
affirm.
                           FACTS AND PROCEDURAL HISTORY
                In 2000, Mother and her then boyfriend Patrick S. had a daughter, Patricia.
In the fall of 2000, over a period of several weeks, Mother and Patrick S. brutally tortured
and murdered 14-month-old Demetri, a developmentally disabled child, who had been
temporarily entrusted to their care by his drug-addicted mother while she was in custody.
Demetri died on October 22, 2000.
                In October 2000, Mother gave birth to her second child Patrick, who was
taken into protective custody when the child tested positive for opiates. Reunification
services for Mother were bypassed and her parental rights were terminated as to Patricia
and Patrick.
                Mother was arrested on charges related to the death of Demetri. She was
convicted of voluntary manslaughter and mayhem and was sentenced to six years in
prison. She was released on parole on March 7, 2006.
                In March 2006, Mother met Father and became pregnant with Christian T.
within the next few months. Christian was born in March 2007, and was immediately
detained in protective custody.
                In April 2007, the court sustained HSA's Welfare and Institutions Code
section 3001 petition finding Mother had an extensive drug history, gave birth to two
drug-positive babies, had been convicted of voluntary manslaughter and mayhem in the
death of Demetri and had not addressed her substance abuse issues. Based upon this
history, the juvenile court found reunification was not in Christian's best interests and
refused to order services for Mother.
                In June 2008, Mother gave birth to her fourth child R., who was also
detained in protective custody. Father was provided reunification services but they were
bypassed as to Mother. Mother's and Father's parental rights were eventually terminated
and R. was adopted.


1
    All statutory references are to the Welfare and Institutions Code.

                                               2
              In May 2008, Mother filed a petition with the juvenile court seeking
reunification services with Christian. Her request was denied. The juvenile court noted
the steps taken by Mother in prison and thereafter to reform her life but said, "The reason
this case exists is because [M]other allowed a child in her care to be tortured and killed.
She puts much blame for her behavior on the fact she was under the influence of heroin.
But that is simply not a good enough explanation. The reasons why a person would
allow such a thing to happen go much deeper than merely being under the influence of
drug[s]. [¶] [I]t certainly will require more evidence of changed circumstances than
[M]other has presented here before children can be considered safe in her custody."
              Father reunified with Christian and in April 2009, Christian's first
dependency was dismissed. Father was awarded sole legal and physical custody of
Christian. Mother was permitted only supervised access to Christian and Father was not
permitted to be the supervisor. Mother and Father disregarded the court orders issued to
ensure Christian's safety. Three months after the orders were issued, Mother became
pregnant with Jasmine. Father and Mother married, Jasmine was born in April 2010 and
the parents continued to ignore the juvenile court orders by living together with both
children.
              In May 2011, Christian, three and Jasmine, one, became dependent children
based upon Mother's history and because Father failed to protect them by refusing to
regard Mother's substance abuse and criminal history as a threat to their safety.
              In June 2011, the juvenile court sustained the petitions under section 300,
subdivisions (b) and (f). Although HSA recommended that reunification services be
bypassed as to both parents, the juvenile court determined that clear and convincing
evidence showed that Mother then fit through the "'tiny crack'" available to a parent
involved in the death of a child caused by the parent's abuse or neglect. (See In re Ethan
N. (2004) 122 Cal.App.4th 55, 65.)
              The juvenile court found that for "over 10 years, Mother has not engaged in
any behavior that suggests she has returned to the person she was in October 2000." The
court noted that although Mother and Father disregarded the court's custody and

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visitation orders, there was no evidence Mother had ever harmed the children or that
there was ever any domestic violence between them. "Jasmine and Christian have lived
with mother and father most of their lives and they do have a close bond with their
parents. The children's need for stability and continuity of care would be served by
allowing these parents to attempt to reunify even though if they are not successful,
permanency will be delayed." The court found this evidence proved reunification was at
that moment in the best interests of the children and ordered HSA to provide reunification
services to the family. These findings and orders were not appealed.
              Father and Mother participated in the reunification services offered by HSA
and the dependency case was dismissed in May 2012. Mother and Father were awarded
joint legal and physical custody of Christian and Jasmine.
              Five months after the juvenile court found Mother was well enough to
warrant the rare finding that a person involved in the non-accidental death of a child in
her care, Mother began a relationship with Randy O. Randy began using drugs when he
was 19 and used methamphetamine and marijuana off and on until he was 28. He
resumed the use of drugs after Mother became pregnant with his child in about November
2011.
              In August 2012, Mother gave birth to T. O., who tested positive for
methamphetamine and opiates. T.'s positive drug tests show that Mother's substance
abuse problems either continued or resumed even while reunification services were being
provided to her. In October 2012, Mother was arrested for being under the influence of
amphetamine and opiates and tested positive for these drugs. When Mother was arrested,
T. and Jasmine were at the home as were two men with outstanding warrants for their
arrest.
              Christian and Jasmine were again taken into protective custody. In
November 2012, the juvenile court sustained petitions and then dismissed them, awarding
sole legal and physical custody to Father. Mother was allowed access to the children
only if it was professionally supervised. It made clear to Father that Mother would need


                                             4
to document her participation for at least a year in a credible substance abuse treatment
program before any changes to the visitation order would be considered.
              The parties do not dispute that Father and Mother again failed to comply
with the court's orders. Only five months later, Father and Mother agreed to and signed a
stipulation that allows Mother unsupervised access to the children. The family court
simply adopted the stipulation and made it the order of the court without a hearing.
Mother refused to document her participation in any program despite requests from
emergency response workers and court workers. In July 2013, Mother became homeless
and Father allowed her to move in with him.
              On or about August 14, 2013, Christian and Jasmine were again detained as
dependents of the juvenile court. HSA's October 31, 2013 Juvenile Dependency Petition
alleges that the children come within the jurisdiction of the juvenile court under the
provisions of section 300, subdivisions (b), (f) and (j). The jurisdictional issue was
litigated but is not challenged on this appeal. The parties agree that several "bypass
provisions" found in section 361.5, subdivision (b)(4) apply to Mother and warrant an
order denying her reunification services unless she proved by clear and convincing
evidence that reunification is in the best interests of the children.
              The issues raised by the HSA pleadings were tried in November 2013. The
juvenile court received oral and documentary evidence. It concluded Mother failed to
show that reunification was in the best interests of the children and refused to order
services. As to Father however, the juvenile court found that reunification was in the best
interests of the children and ordered HSA to provide services. The order as to Father is
not challenged on this appeal.
                                        DISCUSSION
              The general rule is that reunification services must be offered when a
dependent child is removed from the physical custody of a parent or guardian. (§ 361.5,
subd. (a); In re Ethan C. (2012) 54 Cal.4th 610, 626.) Services need not be provided,
however, when the court finds based upon clear and convincing evidence that one or
more of the circumstances listed in section 361.5, subdivision (b) exists. (Ibid.) These

                                               5
circumstances permit the juvenile court to "bypass" services. (In re A.M. (2013) 217
Cal.App.4th 1067, 1074.) The listed circumstances reflect the Legislature's intention to
provide services to parents only where those services will facilitate the return of a child to
parental custody. (Ibid.) If a bypass provision applies, a presumption arises that
reunification services would be an unwise use of governmental resources. (In re Allison
J. (2010) 190 Cal.App.4th 1106, 1112.)
              Nevertheless, even when bypass circumstances exist, the juvenile 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.) In determining whether
reunification is in the child's best interest, the court may consider whether the parent has
made an effort to reform, how genuine that effort has been, as well as the parent's overall
parenting fitness and personal history. (In re Ethan N., supra, 122 Cal.App.4th at p. 66.)
Additional factors for the juvenile court to consider when determining whether a child's
best interests will be served by 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. (Id. at pp. 66-68;
In re D.F. at p. 547.) The burden is on the parent to show that reunification serves 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.)
              An order denying reunification services is reviewed to determine if
substantial evidence supports the order. (R.T. v. Superior Court (2012) 202 Cal.App.4th
908, 914.) "In doing so, all conflicts in the evidence are resolved in favor of the juvenile
court's finding. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600.)" (In
re S.B. (2013) 222 Cal.App.4th 612, 622.)
              Mother argues "clear and convincing evidence established that it was in
[the children's] best interests that she be provided with reunification services." Her
argument misses the point and misstates her burden in the trial court and on appeal.
Properly stated, the juvenile court must find from clear and convincing evidence that

                                              6
reunification is in the best interests of the children before reunification services are
considered. Until this foundational element is proved, a discussion of whether Mother
and the children might benefit from reunification services is not germane.
              Here, the juvenile court's thorough and thoughtful ruling identified a variety
of specific risks that decidedly support the conclusion that reunification is not in the best
interests of these children. They include: (1) Mother's participation in the brutal torture
and murder of a helpless 14-month-old developmentally disabled child; (2) Mother's
conviction of a violent felony that relates specifically to neglect and abuse of a child;
(3) Mother's chronic, severe history of untreated or ineffectively treated drug and alcohol
abuse; (4) Mother's willingness to expose T. when she was in utero to the risk of severe
injury, disability or death by using methamphetamine and opiates for her personal
satisfaction; (5) Mother's unwillingness to protect the children from the presence of
drugs, addicts and drug dealers; (6) the termination of Mother's parental rights to three of
her six children; (7) Mother's intentional violation of the juvenile court's exit orders that
were designed to protect Christian and Jasmine; (8) exposing the children to persons with
a history of criminal activity and outstanding arrest warrants; and (9) the compelling
interest these children have in being part of a stable family and not to be subjected to yet
another round of dependency proceedings and treatment plans.
              Mother relies heavily on the juvenile court's findings and order in May
2012 that reunification was in the children's best interests in spite of her history. She says
this shows her redemption was complete and evidences her metamorphosis from a
"troubled young woman" to a "competent, loving mother." This order, Mother argues,
makes the brutality in 2000 the work of a different person and no longer relevant to an
assessment of the best interests of Christian and Jasmine. First, it is doubtful that either
the juvenile court or the family court would have made the orders they did in 2012 if they
knew Mother was using methamphetamine and opiates while HSA services were being
delivered to her and while she was pregnant. Second, changed circumstances warrant
reconsideration of the orders even if they were then in the best interests of these children.


                                               7
               The record supports the juvenile court's conclusion that Mother made
nothing more than minimal progress toward mitigating the serious issues that affect her
ability to parent the children. We agree with the court that Mother did not carry her
burden of showing by clear and convincing evidence that reunification was in the
children's best interests.
               The judgment is affirmed.
               NOT TO BE PUBLISHED.




                                           BURKE, J.*


We concur:



               GILBERT, P. J.



               PERREN, J.




*
  (Judge of the Superior Court of San Luis Obispo County, assigned by the Chief Justice
pursuant to art. 6, § 6 of the Cal. Const.)
                                             8
                        Tari L. Cody, Bruce A. Young, Judges

                            Superior Court County of Ventura
                           ______________________________


             Terence M. Chucas, under appointment by the Court of Appeal, for
Defendant and Appellant.
             Leroy Smith, County Counsel, County of Ventura, Alison L. Harris,
Assistant County Counsel for Petitioner and Respondent.
