Opinion
B303602
07-02-2020
In re ISABELLA R.-B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CARLOS R., Defendant and Appellant.
Marsha F. Levine, under appointment by the California Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP04057A) APPEAL from an order of the Superior Court of Los Angeles County, Lisa A. Brackelmanns, Commissioner. Affirmed. Marsha F. Levine, under appointment by the California Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.
* * * * * *
A juvenile court removed an infant from her father and denied him any reunification services under the "bypass" provisions of Welfare and Institutions Code section 361.5. This was error because, due to the court's order placing the infant with her mother, father was entitled at most to enhancement services—not to reunification services. However, this error was harmless because the court's reasons for bypassing reunification services foreclose any reasonable possibility that it would have ordered enhancement services. We accordingly affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Isabella R.-B. is the child of Rebeca B. (mother) and Carlos R. (father), and was born in June 2019.
Mother had used amphetamines and methamphetamines on at least two occasions while pregnant with Isabella, but tested negative at the time she gave birth. Father also regularly used methamphetamines.
Mother and father have four other children together, and their drug use has resulted in the termination of parental rights over three of those children and placement of the fourth with a legal guardian. Father has yet to complete any juvenile court-ordered case plan aimed at addressing his drug use.
II. Procedural Background
A few weeks after Isabella was born, the Los Angeles Department of Children and Family Services (the Department) filed a petition asking the juvenile court to exert dependency jurisdiction over Isabella due to mother's and father's "history of substance abuse" and "current abuse[]" of amphetamine and methamphetamine (for mother) and methamphetamine (for father), "which renders [each parent] incapable of providing regular care for [Isabella]" and "places [Isabella] at risk of serious physical harm . . ." (thereby rendering jurisdiction appropriate under section 300, subdivision (b)).
The Department also alleged that dependency jurisdiction was warranted under subdivision (j) of section 300 because the parents' substance abuse had adversely affected their ability to care for Isabella's siblings. The juvenile court dismissed these allegations as "duplicative."
The juvenile court sustained this allegation against each parent. The court sustained the allegation against mother in September 2019. It took longer for father because he effectively disappeared after appearing at the initial detention hearing in June 2019. When several months of due diligence by the Department still failed to locate father, the court sustained the allegation against him with only his counsel present in November 2019.
In November 2019, the court placed Isabella with mother on the condition that Isabella "reside" with mother "in mother's residential [drug] rehabilitation program." The court ordered the Department to provide mother with "[f]amily [m]aintenance [s]ervices."
In December 2019, the court ordered that Isabella be removed from father. At the Department's recommendation and over father's objection, the court denied father any "reunification services" pursuant to the "bypass" provisions for (1) a parent for whom reunification services have been terminated as to a child and who "has not subsequently made a reasonable effort to treat the problems that led to removal" (§ 361.5, subd. (b)(10)), (2) a parent whose parental rights have been terminated and who "has not subsequently made a reasonable effort to treat the problems that led to removal" (id., subd. (b)(11)), and (3) a parent who "has a history of extensive, abusive, and chronic use of drugs . . . and has resisted prior court-ordered treatment for this problem" in the last three years (id., subd. (b)(13)). In so ruling, the court explained that father had yet to "show[] the court even a scintilla of interest, of commitment to turning his life around," but noted that it retained "the ability and the discretion" to order services "should [father] come forward and demonstrate . . . that he is willing to address" the "drug issues" "that brought him before the court."
Father filed this timely appeal.
DISCUSSION
Father's sole argument on appeal is that the juvenile court erred in invoking the bypass provisions applicable to reunification services because he was, by virtue of the court's prior order placing Isabella with mother, not eligible for reunification services in the first place. This raises a legal question about the proper application of the dependency statutes, and is therefore a question we review de novo. (In re Anthony Q. (2016) 5 Cal.App.5th 336, 344.)
Once a juvenile court has exerted dependency jurisdiction over a child, its next step is to issue so-called dispositional orders that "clearly and specifically set forth" any "limit[s]" on the "control to be exercised over the dependent child by [her] parent[s]." (§ 361, subd. (a)(1).) When the court issues dispositional orders that remove a child from the custody of both parents, the court is presumptively required to order the Department to provide those parents with "reunification services." (§ 361.5, subd. (a); § 16501, subd. (h) [defining "reunification services"]; In re Joel T. (1999) 70 Cal.App.4th 263, 268.) When the court issues dispositional orders that leave the child in the custody of one or both parents, the court has the discretion to order the Department to provide "family maintenance" services to the parent(s) retaining custody and "enhancement" services to the parent from whom the child is removed. (§ 362, subd. (c) [authorizing juvenile court to require parents to "participate in child welfare services" if court has "order[ed] that a parent . . . shall retain custody of [a] child"]; id., subds. (a) & (d) [detailing the types of services a court may order]; § 16501, subd. (g) [defining "family maintenance services"]; In re A.C. (2008) 169 Cal.App.4th 636, 641-642, fns. 4 & 5 (A.C.) [detailing differences between "family maintenance" and "enhancement" services]; Earl L. v. Superior Court (2011) 199 Cal.App.4th 1490, 1497, fn. 1 [same]; see also In re Calvin P. (2009) 178 Cal.App.4th 958, 963 [explaining difference between reunification services and family maintenance services].) Because Isabella remained in mother's custody, father was at most entitled to enhancement services; he was not entitled to reunification services. (A.C. at p. 650 ["if minors remain in the custody of a parent, [reunification services] play[] no role"]; In re Pedro Z. (2010) 190 Cal.App.4th 12, 19-21 [same]; In re A.L. (2010) 188 Cal.App.4th 138, 145 [same].; In re Jaden E. (2014) 229 Cal.App.4th 1277, 1286 [same]; In re T.W. (2013) 214 Cal.App.4th 1154, 1169 [same]; In re Gabriel L. (2009) 172 Cal.App.4th 644, 651 [same].) Thus, as the Department concedes, the juvenile court erred in bypassing father from services to which he was not entitled in the first place.
But this error does not warrant reversal. An error warrants reversal only when it is "reasonably probable the result would have been different" without the error. (In re Celine R. (2003) 31 Cal.4th 45, 50.) Here, there is no such reasonable probability. The three specific bypass provisions the juvenile court cited in denying father reunification services grant a juvenile court discretion to bypass those services and tie that discretion to a determination of "the best interests of the child." (§ 361.5, subd. (c)(2) [bypass is required pursuant to section 361.5, subdivisions (b)(10), (b)(11), and (b)(13) "unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child."]; In re A.E. (2019) 38 Cal.App.5th 1124, 1140-1141.) Contrary to father's contention that the juvenile court is not statutorily authorized to withhold enhancement services, a juvenile court's decision whether to provide—or, for that matter, not provide—a parent enhancement services is discretionary, and that discretion also turns on the best interest of the child. (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474; In re Destiny D. (2017) 15 Cal.App.5th 197, 212-213.) Here, the juvenile court recognized it had discretion to award reunification services and explained why it would not do so due to father's lack of commitment to turning his life around and his unwillingness to address his longstanding drug issues. This implicit determination of Isabella's best interests—although directed at the discretionary decision whether to provide reunification services—applies with equal force to the discretionary decision whether to provide enhancement services. There is no reasonable probability the court would have come to a different result had the court been thinking of "enhancement" services rather than "reunification" services. Indeed, the court's final comment that "father is not being given enhancement services" only confirms this point.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, P. J.
LUI /s/_________, J.
CHAVEZ