Opinion
H046887
11-26-2019
In re A.L., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. A.C., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 118JD025484)
On November 21, 2018, the Santa Clara County Department of Family and Children's Services (Department) filed a petition under Welfare and Institutions Code section 300, subdivisions (b)(1), (g), and (j) relative to a girl, A.L. (the minor), who was then three years old. A.C. (mother) and E.L. (father) are the minor's parents. (Mother and father are hereafter collectively referred to as parents.) The minor was living with father, and she was placed into protective custody after father left the minor with a daycare provider for several days without having made arrangements for the minor's care. Father was in custody, and the Department at the time could not locate mother. The Department alleged that mother had an extensive substance abuse history, a lengthy history of domestic violence, and child welfare history involving a younger child, G.C. (the minor's younger half-sibling), that had resulted in the termination of mother's parental rights. The Department alleged that "mother's continued chronic and active substance abuse place[d] the child, [the minor], at similar risk of harm and neglect experienced by the half-sibling, [G.C.], in her care."
Further statutory references are to the Welfare and Institutions Code unless otherwise stated.
On March 12, 2019, after a jurisdiction/disposition hearing that was contested by mother, the juvenile court declared the minor a dependent child and removed him from the care of the custodial parent, father. The court found by clear and convincing evidence that placement of the minor with the previously noncustodial parent, mother, would be detrimental to the minor's safety. The juvenile court further ordered family reunification services to father, and bypassed reunification services for mother under section 361.5, subdivision (b) (§ 361.5(b)).
Mother contends on appeal that the juvenile court erred by failing to make a determination under section 361.2, subdivision (a) (§ 361.2(a)) of whether the minor should be placed with mother, the previously noncustodial parent. She argues the court thus erred by applying section 361.5(b) as if mother were a custodial parent in ordering that reunification services be bypassed. We conclude the juvenile court properly applied section 361.2(a) in considering whether to grant custody to mother. We will therefore affirm the order.
I. FACTS AND PROCEDURAL HISTORY
A. Initial Proceedings
On November 21, 2018, the Department filed a petition under section 300, subdivisions (b) (1), (g), and (j) relative to the minor. The Department alleged that on November 9, 2018, the minor was placed into protective custody because father had left the minor with a daycare provider, M.C., without having made provision for the minor's care. Father was in custody at Elmwood Correctional Facility (Elmwood). Despite the Department's diligent efforts, the whereabouts of mother remained unknown.
The Department alleged that mother had an extensive and active substance abuse problem that impaired her ability to care for her children. Mother had two children in addition to the minor who were not in her care because of mother's inability to meet their basic needs. The Department alleged that in August 2017, the juvenile court had declared G.C.—then three months old—a dependent child "due to the mother's chronic and active substance abuse" and her having "displayed erratic and paranoid behaviors and [having] involved [G.C.] in those behaviors." In that proceeding, the court had ordered family maintenance services for mother that included substance abuse treatment services. Mother's parental rights for G.C. were terminated by the juvenile court in March 2018.
The Department alleged further that mother had a history of domestic violence spanning at least five years, and that she "had a pattern of leaving her husband and then returning to him and engaging in heated arguments in [G.C.'s] presence. Mother had not participated in domestic violence treatment services. Father—who is not mother's husband—had a history of domestic violence involving mother that was perpetrated in the minor's presence.
The court ordered the minor detained on November 26, 2018.
The Department filed a first amended petition on December 18, 2018. It alleged that the whereabouts of mother were unknown to the Department between July 6, 2018, and December 14, 2018, "due to her disengagement in services and visitation with [G.C.]" On December 14, 2018, mother told the Department that she was living and working in Brentwood, and she did not request at that time that she be considered for placement of the minor.
At a December 21, 2018 hearing for jurisdiction and disposition, mother made her first appearance in the proceedings. The court continued the hearing to permit mother time to retain counsel. The jurisdiction/disposition hearing was ultimately scheduled for March 12, 2019.
On March 8, 2019, the Department filed a second amended petition. The Department alleged that mother had used methamphetamines, alcohol, and marijuana since she was 15 years old—for approximately 17 years—and such abuse included daily methamphetamine use. Mother used methamphetamine intermittently while she was pregnant with the minor. The Department alleged further that father also had an extensive and active substance abuse issue that impaired his ability to care for the minor, and that he had been using methamphetamine and alcohol over the previous five years. Father tested positive for methamphetamines on February 1, 2019. The Department alleged that father "ha[d] a history of perpetrating severe physical domestic violence on the mother in the presence of the [minor, and he] was arrested and charged with perpetrating domestic violence on the mother on 7/7/16, 5/25/16, 2/3/16, and 12/8/15." Father was placed on probation but did not comply with drug treatment or domestic violence counseling. With respect to the prior G.C. dependency proceeding, although the court had ordered family maintenance services for mother, she prematurely left a drug treatment program and "continued to use methamphetamine and displayed erratic and unsafe behaviors with the child, and [G.C.] was removed from [her] care in October 2017." Mother's reunification services were terminated in March 2018 and her parental rights were terminated in July 2018.
B. Jurisdiction/Disposition Reports
The Department submitted separate reports in connection with the jurisdiction and disposition hearing.
1. The Minor's Detention
The Department reported that upon her detention on November 19, 2018, the minor was placed in an emergency foster home. On November 30, she was placed with M.C., the minor's daycare provider.
The minor's detention arose after it was reported on November 5 that father had dropped off the minor at M.C.'s home on November 1 and had not returned to pick her up for the next five days and had not contacted M.C. The Department made various efforts to locate father. It was not until November 20 that it located father, determining that he was incarcerated in Elmwood.
2. Father
During an interview at the Elmwood facility on November 20, father explained to the social worker, Milagros Saybe, that he had been the sole provider for the minor her entire life, and that mother left the minor with father to care for her solely around the fall of 2017. He said he had previously discussed with the minor's daycare provider, M.C., that he needed to turn himself in to the police because there was an outstanding bench warrant for a probation violation. Father told M.C. he did not know when he would be surrendering, but M.C. agreed that she would take care of the minor in his absence. Father told Saybe that he had not memorized M.C.'s telephone number, so he could not call her after he was arrested on November 1 after he stopped at a store to cash a check. Father expressed concern about the minor's well-being, but also stated that he believed M.C. would provide her with good care.
The daycare provider, M.C., advised the Department that she had taken care of the minor for two years. Approximately three months before the minor was detained, father told M.C. that he needed to turn himself in to the authorities; he asked her if she would be the minor's caregiver and she agreed. M.C. also reported that in the month before he was arrested, father "appeared more unaware of his environment, reported he could not remember previous statements told to him, had poor hygiene, his eyes appeared red, and [he] did not turn in the child's physical and dental results to the school." She also reported that during that period of time, the minor's hygiene had significantly worsened.
Father told Saybe on November 20 that he could not recall the address where he resided but that it was in a trailer on the property of his employer. Father denied that he had any drug or alcohol issues. He later told the social worker that his circumstances were due to his bad decisions related to his relationship with the minor's mother, and that he had been incarcerated because he had not presented himself to court or participated in classes required under the terms of his probation. Father said that he was not in contact with mother and did not know where she lived.
Father advised the Department that he had first used marijuana when he was 10 years old, but, as an adult, did not like to use it. He began drinking alcohol at age 13, and when he was 33, drank approximately 12 beers per week; he denied having a current alcohol problem. Father stated further that he had used cocaine from 2010 to 2013 at a frequency of four to five times per month. He began using methamphetamine in 2014, when his use was twice per day, until 2016. He ceased using it in September 2016 when he began receiving informal supervision services. Father reported that he had attended two Alcoholics Anonymous (AA) classes in 2016 and four Narcotics Anonymous (NA) classes during his incarceration. It was his opinion that his alcohol and substance abuse did not directly relate to his incarceration, probation violation, or his ability to safely care for the minor.
Father's cousin told the Department on December 11 that father had been struggling with alcohol abuse for three years. He was aware that father lived in his car with the minor and that he drank alcohol daily in public in her presence. It was the cousin's understanding that father had never received substance abuse treatment. The cousin also understood that father and mother had originally met at a tire shop where father worked, and they had used methamphetamine and drunk alcohol together. The cousin believed that mother and father exposed the minor to their substance abuse throughout the time that parents lived together.
The Department reported that father was convicted in February 2016 of battery upon a spouse or cohabitant (Pen. Code, §§ 242, 243, subd. (e)) and possession of a deadly weapon with intent to commit assault (id., § 17500), for which he received three- years' probation. Father's probation officer reported that father had violated the terms of his probation on three occasions, and that he would be unsuccessfully released from probation in January 2019. The probation officer advised that father had failed to comply with the terms of his probation of drug testing and domestic violence counseling.
On January 7, 2019, father advised the Department that he expected to be released from Elmwood on January 17. He stated he did not know where he would live but he expected to return to his place of employment. Father told Saybe he would contact her upon his release to schedule a meeting and to schedule supervised visits with the minor. Father was in fact released on January 17, and he went to M.C.'s home to drop off clothing for the minor. Father did not contact the Department until January 28. At that time, he stated he was looking for housing and wanted to begin visitation with the minor. As of January 29, the whereabouts of father were unknown to the Department.
3. Child Welfare Referrals
The Department reported that there were 10 child welfare referrals in Santa Clara County involving mother's children. Five involved allegations of neglect with respect to mother's older son, A.S., the minor's older half-sibling. One referral concerned allegations of neglect involving the minor and A.S., one referral concerned the minor, and three referrals concerned G.C. The August 2016 referral involving A.S. and the minor (one year old at the time) involved the mother claiming that father had punched her in the stomach and hit her behind the ear with a frying pan, causing her to bleed. Mother declined services because she did not want father arrested, and the Department was unable to conclude an investigation of the matter.
The Department noted that A.S. resided in Stockton with the paternal aunt.
The referral involving general neglect of the minor occurred in September 2016 as a result of San Jose police officers discovering the minor having been left unattended in a car and in distress. The Department interviewed father, who explained that he had left the minor sleeping in her car seat "for two minutes while he went to get some belongings from the RV a few cars away." Father said that he did not let mother take care of the minor as often as he had previously because she used drugs while caring for the minor. The Department was unsuccessful in contacting mother. The Department contacted the minor's godmother, who stated she had permitted parents to stay in her RV on occasion. The godmother stated that father did not allow mother to take the minor because she was living in a recycling center that was not safe. The godmother stated further that on one occasion, mother had started a fire in the RV as a result of her burning candles. The allegations of general neglect were substantiated. The Department offered, and father agreed to, informal supervision services. In March 2017, father completed voluntary maintenance services.
Some of the details concerning the G.C. dependency are taken from documents filed in that proceeding that were attached to the Department's addendum report of March 11, 2019, filed in the instant proceeding.
The minor's half-sibling, G.C. (then one-month old), was taken into protective custody on June 5, 2017. It was alleged that mother was actively abusing drugs, "regularly smok[ing] methamphetamine within five feet of the child" and had driven a car while under the influence of methamphetamine with G.C. present. Additionally, the Department alleged that G.C. had been exposed repeatedly to domestic violence, and that on June 3, 2017, the alleged father of G.C. had threatened mother with a gun. On August 4, 2017, the juvenile court declared G.C. a dependent child, ordering family maintenance services for mother under a program that included attendance at parenting class and individual counseling, random drug testing, attendance twice per week and completion of a 12-step program, a substance abuse assessment, including compliance with recommended drug treatment programs.
Approximately one month later, on September 11, 2017, G.C. was placed into protective custody after mother prematurely left a residential drug treatment program. Before leaving the program, "mother behaved erratically with the infant child in the stroller and ran through the facility while the infant was crying in fear." In October 2017, the juvenile court ordered the removal of G.C. from mother's care, that mother receive family reunification services, and that she participate in and complete the programs as previously ordered on August 4, 2017.
Mother reported in the G.C. dependency that she had begun using methamphetamine in 2002 when she was 15 years old, and that she had used the substance daily. She also reported that in 2012, she was arrested twice for possession of methamphetamine and once for domestic violence.
Mother was also arrested in February 2014 for possession of a controlled substance, use of a controlled substance, possession of drug paraphernalia, and cruelty to a child. There is no indication of a later conviction of any of these offenses.
Mother was provided with six months of reunification services (October 2017 to March 2018) in connection with the G.C. dependency. It was reported by the Department that of the 36 scheduled visits of G.C., mother attended only 16, cancelling 20 visits. Mother requested during each visit that the time be shortened, because G.C. showed difficulty in staying engaged, and he exhibited signs of distress. Additionally during the reunification period, mother did not address her long history of substance abuse and "only made minimal efforts to participate in her case plan services." The juvenile court terminated mother's services on March 23, 2018, the court finding by clear and convincing evidence that mother had failed to participate regularly and make substantive progress in the court-ordered treatment plan. On July 20, 2018, the juvenile court terminated mother's parental rights.
5. Mother
The Department learned through the maternal grandfather on December 14 that mother was living with her current boyfriend in Brentwood. When Saybe telephoned mother on December 14, she said she did not know the minor's whereabouts, and that she had last seen the minor on November 14. (Mother later corrected this statement, telling Saybe she had last seen the minor in October 2018.) Mother asked about the child's welfare and whether she was attending school. She explained that she was living and working in Brentwood and would be there for a few months. In a telephone conversation three days later, Mother told Saybe that she would attend the court hearing on December 21, and that she would like to be considered for placement and reunification services. Mother acknowledged that her parental rights for G.C. had been terminated, and she confirmed she had not seen G.C. since July 2018 due to " 'stuff going on and her being in Brentwood.' "
On December 21 (the day of the first court hearing in which mother appeared), Saybe asked mother to contact her to schedule a meeting; mother did not call Saybe. On December 28, mother reported to Saybe that she was still living in Brentwood and did not know when she could get to San Jose for a meeting. She told Saybe that "it was her priority to finish the job of remodeling the home where she was living, 'but was not putting the [minor] on the back burner.' " She stated that she could not explain why she had not previously participated in case plan services required in the G.C. dependency. Mother reported that since moving from San Jose, her methamphetamine use had decreased from weekly to monthly, and that her last use was in November. Mother told Saybe she drank alcohol two to three times per week. After denying that alcohol use was a problem, mother "then reported that she realizes that 'drinking is not good for [her], for [her] life, [her] health, and making bad decisions [sic].' " On January 2, 2019, mother tested clean for all substances.
On January 3, mother reported to the Department that she wanted the minor in her care, but if she could not have custody, she would like the minor placed with a neighbor in Brentwood. On January 8, mother reported to Saybe that she was still living in Brentwood, did not have money to travel to San Jose to meet with Saybe, and she asked if she could participate in services in Contra Costa County. Mother said she could not recall the last time she had attended AA or NA classes and did not have a sponsor.
The Department noted that on November 26, the court had ordered a minimum of one hour per week of supervised visitation for mother, after she first met with the supervising social worker. On December 26, Saybe supervised a visit between mother, the maternal grandfather, and the minor. The minor "appeared anxious to visit with the mother, and held on to [Saybe's] hand, arm, and leg. [The minor] cried when the mother tried to hold her." Mother brought toys to the visit, but the minor seemed uninterested in opening the gifts. Although the minor cried and initially refused to enter the McDonald's, Saybe assured her that she would be staying for the visit. The minor calmed down and mother interacted with the minor and played with her at the indoor playground. The only other visit identified in the reports was a seven-minute supervised telephone conversation on January 16.
Saybe noted in her disposition report that she had called mother on January 4, 14, 24, and 25 to attempt to schedule a meeting with her. As of January 29, mother's whereabouts were unknown and she had not contacted Saybe.
6. Department's Conclusions and Recommendations
The Department concluded that the minor could not be safely placed with father because (1) he had been released from custody on January 17 and did not contact the Department until 11 days later; (2) his whereabouts remained unknown; (3) his instability did not allow for him to safely care for the minor; (4) he had untreated substance abuse issues and a domestic violence issue, and he had not been forthcoming with the Department about them; and (5) he lacked insight into the issues that resulted in the minor's being detained.
Under the heading, "consideration of placement with non-custodial parent" (capitalization, bold, and underscoring omitted), the Department concluded that the prospective placement of the minor with mother was not appropriate. It noted that mother had untreated substance abuse and mental health issues, had been using methamphetamine for 17 years, and these untreated issues placed the minor at significant risk of harm were she released into her care. Mother had not been forthcoming about her mental health and substance abuse issues. Further, mother had two other children not in her care, including G.C., who was involved in a dependency resulting in the termination of mother's parental rights in July 2018. The Department noted that Mother had not made herself available to the minor, telling the Department she was living and working in Brentwood and that she was unable to schedule a time when she would be visiting San Jose so that she could meet with Saybe or visit the minor. Mother did not have stable housing, and the Department concluded she was unable to meet the minor's basic needs.
The Department recommended that father be offered family reunification services. It recommended further that services for mother be bypassed under section 361.5(b)(10), and (11). The Department based this recommendation upon the fact that mother's reunification services in connection with G.C. were terminated in July 2018; mother had chronic untreated substance abuse and mental health issues; mother had used methamphetamine over the previous 17 years and had been using drugs since she was 15 years old; and mother had in the past failed to participate in substance abuse services.
C. Addendum Report
On March 12, 2019, the Department filed an addendum report in connection with that hearing. Father reported on February 14, 2019 that he had seen mother and her current boyfriend in a grocery store the previous day. Mother asked father to take some gifts to the minor. Father advised the Department that mother appeared to be under the influence of drugs or alcohol.
On March 5, Saybe met with mother for an initial in-person interview. Mother stated that she had moved back to San Jose in mid-February. She stated that she was scheduled for a March 7 drug and alcohol assessment; she had missed an appointment for the assessment the prior week due to illness. Mother told Saybe on March 6 that she did not have a sponsor and recalled attending one AA meeting while she lived in Brentwood. Mother said she had last used methamphetamine December 22 or 23 of the prior year " 'because of what was going on at Court.' " She said she had last had alcohol on March 4. Mother also told Saybe that when her services were terminated in March 2018 in the G.C. dependency, "she felt that 'the system failed her.' "
Mother also reported to Saybe that she had not completed a residential treatment program in 2017 because the facility was " 'filthy,' the food was infested with ants, roaches, and the handy man was not helpful." Mother also complained that the curriculum at the facility had been "at a 'middle school' level." Mother told Saybe she had written " 'HELP' on the window 'to get the attention of the Sheriff's Department, out of laughter.' " Mother told Saybe that she last had individual counseling in 2017 after having left the residential treatment program. She attended three individual therapy sessions. Mother said that she had also met with a psychiatrist, who diagnosed her as having "Bipolar Disorder." Mother advised Saybe that she had not participated in any domestic violence support groups, but she was now willing to do so.
On March 7, mother reported that as a result of her assessment, it was recommended that she receive outpatient drug treatment services; she had an initial appointment scheduled for March 13. In the assessment report, it was indicated that mother did "not think that she ha[d] an issue with drugs or alcohol, [but] sa[id] she [was] doing this [assessment] because of [the] CPS case."
On February 20, Saybe submitted a request for weekly supervised visitation between mother and the minor. On March 7, the visitation center coordinator advised that they could accommodate weekly supervised visitation, and visitation between mother and the minor had been scheduled for Fridays, commencing on March 15.
D. Jurisdiction and Disposition Hearing
The juvenile court conducted a combined jurisdiction and disposition hearing on March 12, 2019. Father stipulated to submitting the matter on the second amended petition. Mother contested the matter and testified on her own behalf.
Mother testified that after the minor was born, she cared for him for the first six months while mother lived in a room that she rented. Father "would occasionally come home but not very often." After father failed to pay half of the rent, they were required to move to a motorhome that father chose. Mother did not like the motorhome and after a few days, took the minor to live at her husband's home for two or three weeks. In 2016, after several domestic incidents involving father, she ceased living full time with the minor. Mother testified that there were documented incidents of domestic violence between mother and father on December 8, 2015, and July 7 and 14, 2016. Mother "tried several times to have [the minor] with [mother], but [father] refused, and would drive away." When mother visited the minor, father would not allow mother to take the minor anywhere.
Mother testified that father had her telephone number the previous September and October. But she did not learn that the minor had been detained until December 14.
On December 21, 2018 when mother attended the court hearing, she spoke to the social worker and volunteered to participate in services if she could do them in Brentwood where she was then living. Mother testified that she "was ready to come back [to San Jose] any moment for the case." Mother explained that it had been recommended after her drug and alcohol assessment that she receive outpatient therapy; her first appointment was March 13, the day after the hearing. Mother had been tested clean for drugs on January 3, and she had had another clean drug test the week before the hearing.
Mother explained that she had not received a drug test identification until the week before the hearing.
Mother explained that she was unable to reunify with her younger son, G.C., but that the circumstances were different with the minor. She stated that G.C. was a baby at the time of the dependency proceedings and he bonded with the foster mother more than he bonded with mother. She stated that she "just kind of gave up." Mother said that in contrast to G.C., because the minor was older, she and mother had "had more time to bond." Mother testified that she and the minor had "always been close." She said that previously their relationship was "non-verbal" because the minor only spoke Spanish, and they "would play a lot"; but more recently, the minor had learned English, which was "great."
On cross-examination, mother said she had "never really engaged in recovery activities on my own. I apologize, but that's the truth. But I have had clean time." She testified that she had not engaged in recovery activities in 2019, but she was going to an outpatient appointment the next day and had gone to "one or two" meetings in January, explaining that she had wanted to go to more meetings, but it was the rainy season and she did not have a car. Mother stated her reluctance to attend sobriety programs: "So going to N.A./A.A., I don't really want to, but I will."
After hearing argument, and after considering the evidence, including the Department's reports, the court issued its decision from the bench. The court found the allegations of the second amended petition true, and in its disposition order, adjudicated the minor a dependent child of the court. It found by clear and convincing evidence that the minor's welfare required that the minor be removed from the physical custody of father, the parent with whom she resided when the initial petition was filed, because there would be a substantial risk to her physical health, safety, protection, or physical or emotional well-being which could not be protected without such removal. The court further found by clear and convincing evidence that "placement with the previously non-custodial parent [mother] is detrimental to the child's safety." It ordered reunification services for father. The court found by clear and convincing evidence under section 361.5(b)(10),(11), and (13) that it would not be in the best interests of the minor to provide services to mother and therefore issued a bypass order.
Minor's counsel joined in the arguments of counsel for the Department. Specifically, minor's counsel urged that the court adopt the Department's recommendations that services be ordered for father and that services for mother be bypassed.
Mother filed a timely notice of appeal from the jurisdiction and disposition order of March 12, 2019.
II. DISCUSSION
A. Dependency Law Generally
Section 300 et seq. provides "a comprehensive statutory scheme establishing procedures for the juvenile court to follow when and after a child is removed from the home for the child's welfare. [Citations.]" (In re Celine R. (2003) 31 Cal.4th 45, 52.) As our high court has explained: "The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time. [Citations.] Although a parent's interest in the care, custody and companionship of a child is a liberty interest that may not be interfered with in the absence of a compelling state interest, the welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect. [Citations.] The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful. [Citations.] This interest is a compelling one. [Citation.]" (In re Marilyn H. (1993) 5 Cal.4th 295, 307.)
The court at a jurisdictional hearing must first determine whether the child, by a preponderance of the evidence, is a person described under section 300 as coming within the court's jurisdiction. (§ 355, subd. (a).) Once such a finding has been made, the court at a dispositional hearing must hear evidence to decide the child's disposition, i.e., whether he or she will remain in, or be removed from, the home, and the nature and extent of any limitations that will be placed upon the parents' control over the child, including educational or developmental decisions. (§ 361, subd. (a).) If at the dispositional hearing, the court determines that removal of the child from the custody of the parent or guardian is appropriate, such removal order must be based upon clear and convincing evidence establishing that one of five statutory circumstances exists. (§ 361, subd. (c).)
Where the juvenile court orders removal of the child from the custodial parent's care, it is then required under section 361.2(a) to "first determine" whether there is a noncustodial parent willing to assume custody, and, if so, whether such custody is appropriate. Under that statute, the previously noncustodial parent agreeing to assume custody shall be granted custody of the child "unless [the court] finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." (Ibid.) The trial court must find by clear and convincing evidence that placement of the minor with a previously noncustodial parent would be detrimental to the child. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1827-1829.) This higher standard of proof is required because "[a] parent's right to care, custody and management of a child is a fundamental liberty interest protected by the federal Constitution that will not be disturbed except in extreme cases where a parent acts in a manner incompatible with parenthood." (Id. at p. 1828.) "A detriment evaluation requires that the court weigh all relevant factors to determine if the child will suffer net harm. [Citation.]" (In re Luke M. (2003) 107 Cal.App.4th 1412, 1425.) And "[w]hen the parent is competent, the standard of detriment is very high. [Citation.]" (In re Patrick S. (2013) 218 Cal.App.4th 1254, 1263.) The party opposing placement with the previously noncustodial parent bears the burden of proving detriment to the child under section 361.2(a). (In re C.M. (2014) 232 Cal.App.4th 1394, 1402.)
"When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child. The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with his or her parent shall not be, for that reason alone, prima facie evidence that placement with that parent would be detrimental." (§ 361.2(a).)
B. Family Reunification Services
When a dependent child is removed from parental custody, the juvenile court is ordinarily required to provide the parent with services to facilitate the reunification of the family. (§ 361.5, subd. (a); see Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 303.) Where reunification services are ordered, they generally (subject to exceptions and instances in which the period may be extended) begin with the dispositional hearing and, for children three years or older, end 12 months thereafter. (§ 361.5, subd. (a)(1)(A).)
Reunification services are very significant, but parents have no absolute right to receive them. As explained by one court: "The importance of reunification services in the dependency system cannot be gainsaid. The law favors reunification whenever possible. [Citation.] To achieve that goal, ordinarily a parent must be granted reasonable reunification services. [Citation.] But reunification services constitute a benefit; there is no constitutional ' "entitlement" ' to those services. [Citation.]" (In re Aryanna C. (2005) 132 Cal.App.4th 1234, 1242.)
A court may order the bypass of reunification services altogether if one of sixteen circumstances is established by clear and convincing evidence, as specified in section 361.5(b). These exceptions "have been referred to as reunification 'bypass' provisions." (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 845.) "These bypass provisions represent the Legislature's recognition that it may be fruitless to provide reunification services under certain circumstances. [Citation.]" (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597; see also In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478 [if one of the exceptions under 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"].)
There are three circumstances under section 361.5(b) relevant here that the court below found applicable to mother's circumstances. First, the juvenile court below concluded that section 361.5(b)(10) applied, permitting bypass of services where "the court ordered termination of reunification services for any siblings or half siblings of the child because the parent . . . failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent . . . and that, according to the findings of the court, this parent . . . has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent." Second, the juvenile court here relied on section 361.5(b)(11), which permits a bypass of services where "the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, . . . and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent." Third, the juvenile court in this case relied on section 361.5(b)(13), which permits a bypass of services where "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 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."
Even if the court finds by clear and convincing evidence that one or more of the statutory circumstances permitting a bypass order exists, it may still "provide reunification services if it finds, by clear and convincing evidence, that reunification—not reunification services—is in the dependent child's best interests. [Citations.] A court called upon to determine whether reunification would be in the child's best interest may consider a parent's current efforts and fitness as well as the parent's history. [Citation.] Additional factors for the juvenile court to consider when determining whether a child's best interest will be served by pursuing 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, which is of paramount concern. [Citations.] The burden is on the parent to show that reunification would serve the best interests of the child. [Citations.]" (In re S.B. (2013) 222 Cal.App.4th 612, 622-623; see also In re Ethan N. (2004) 122 Cal.App.4th 55, 66-68.)
C. Standard of Review
In reviewing an order under section 361.2(a) that a dependent child should not be placed with a previously noncustodial parent based upon a showing that such placement would be detrimental to the child, an appellate court "review[s] the record in the light most favorable to the court's order to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that the children would suffer such detriment. [Citations.]" (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.)
We review an order bypassing reunification services to determine whether there is substantial evidence to support the court's findings. (In re Harmony B. (2005) 125 Cal.App.4th 831, 843.) "In so doing, we presume 'in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.' [Citation.]" (In re G.L. (2014) 222 Cal.App.4th 1153, 1164) Our role is not to reweigh the evidence or to make credibility determinations. (A.A. v. Superior Court (2012) 209 Cal.App.4th 237, 242.) And " ' "[t]he sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal." [Citations.]' [Citation.]" (Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881, quoting Crail v. Blakely (1973) 8 Cal.3d 744, 750.)
However, where the court finds by clear and convincing evidence that one of the bypass provisions of subdivision (b) applies, and the court does not find by clear and convincing evidence under subdivision (c) that reunification services are in the child's best interest, we review the latter determination for abuse of discretion. "A juvenile court has broad discretion when determining whether . . . reunification services would be in the best interests of the child under section 361.5, subdivision (c). [Citation.]" (In re William B. (2008) 163 Cal.App.4th 1220, 1229.)
D. No Error by Juvenile Court
Mother argues on appeal that the juvenile court erred in bypassing reunification services for mother under section 361.5(b). She contends that the court applied the wrong statute, section 361.5, to the case, and it should have instead applied section 361.2 because mother was a previously noncustodial parent. Mother contends that "none of the attorneys in this case broached the proper applicability of section 361.2, and the court did not make reference to it or apply it." In support of her position, mother relies on two cases—R.S. v. Superior Court (2007) 154 Cal.App.4th 1262 (R.S.), and In re V.F. (2007) 157 Cal.App.4th 962—in which the appellate court reversed due to the failure of the juvenile court to consider whether the previously noncustodial parent should be given custody of the child pursuant to section 361.2. She argues further that she was prejudiced by this error because she "did not have the opportunity to present and submit her case under the applicable statute."
The Department agrees with mother that, when the juvenile court orders the removal of the dependent child from a custodial parent, under section 361.2, it must first ascertain whether there is a noncustodial parent seeking custody of the child. But the Department argues that the juvenile court here complied with section 361.2 by concluding that mother was a noncustodial parent seeking custody but there was clear and convincing evidence that such placement would be detrimental to the minor. (See § 361.2(a).)
There is no error. The juvenile court did, in fact, comply with section 361.2(a). After finding by clear and convincing evidence that that removal of the minor from the custody of father, the custodial parent, was required for the child's welfare, the court then "first determine[d] whether there is a parent of the child, with whom the child was not residing [when the circumstances resulting in the dependency proceeding arose], who desires to assume custody of the child." (§ 361.2(a).) The juvenile court specifically found on the record "[b]y clear and convincing evidence, [that] placement with the previously non-custodial parent is detrimental to the child's safety." This language mirrors the language of section 361.2(a): "If [the previously noncustodial] parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." Further, the juvenile court in announcing its decision specifically adopted the recommendations in the Department's disposition report, pages 32 through 37, including (through this adoption) finding number 12 that "[b]y clear and convincing evidence, placement with the previously noncustodial parent would be detrimental to the child's safety, protection, or physical or emotional well-being." And the court's finding of detriment was consistent with the detailed discussion in the Department's disposition report which the court considered. In that report, under the heading, "consideration of placement with non-custodial parent" (capitalization, bold, and underscoring omitted), the Department concluded that the prospective placement of the minor with mother was not appropriate due to a number of specific factors, including mother's 17-year untreated substance abuse issues, her untreated mental health issues, the prior G.C. dependency that had resulted in the termination of mother's parental rights in July 2018, mother's failure to make herself available to the minor, mother's failure to make arrangements to meet with the Department to discuss issues such as visitation, and mother's lack of stable housing.
Therefore, mother's claim on appeal that the juvenile court "did not make reference to [section 361.2(a)] or apply it" is unfounded. It thus follows that her reliance upon R.S., supra, 154 Cal.App.4th 1262 and In re V.F., supra, 1567 Cal.App.4th 962—where error was found by the appellate courts because the juvenile failed court to consider pursuant to section 361.2 whether the previously noncustodial parent should be given custody of the child—is misplaced. Moreover, we reject mother's apparent claim that because neither counsel nor the court made specific reference to section 361.2, the court thus failed to carry out its duty under that statute to first determine whether there was a previously noncustodial parent willing to assume custody and, if so, determine whether such custody should be ordered. Contrary to mother's contentions, the record shows that the juvenile court did consider and apply section 361.2, albeit without citing to that specific statute. And mother provides no legal authority—nor is this court aware of any—that requires the juvenile court to specifically cite the statute it is applying in making the findings required by law as it did here. Accordingly, the court below did not err in finding under section 361.2(a) by clear and convincing evidence that placement of the minor with mother, as the previously noncustodial parent, would be detrimental to the minor's safety.
Mother does not argue on appeal—presumably because it would be inconsistent with her contention that the court did not address section 361.2 at all—that there was no substantial evidence to support the court's finding by clear and convincing evidence that placement of the minor with mother would be detrimental to the minor's safety. (See In re Luke M., supra, 107 Cal.App.4th at p. 1426 [determination of whether placement with noncustodial parent would be detrimental to the child reviewed for substantial evidence].) We will not address this unasserted contention. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Foreman & Clark) [appellant forfeits appellate challenge based upon sufficiency of the evidence when it does not present in appellate brief a summary of all material evidence on the issue].) Moreover, although the Department argues at length in its respondent's brief that substantial evidence supported the trial court's findings in support of its bypass order under section 361.5(b)(10), (11), and (13) (see In re Harmony B., supra, 125 Cal.App.4th at p. 843 [findings under § 361.5(b) reviewed for substantial evidence]), mother does not make this argument in either her opening brief or her reply brief. We will also not address this unasserted claim. (See Foreman & Clark, supra, at p. 881.)
III. DISPOSITION
The order after jurisdiction and disposition hearing of March 12, 2019 is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
PREMO, ACTING P.J. /s/_________
MIHARA, J.