IN RE: SOFIA A. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Isaias A. (father) appeals from a juvenile court order denying him reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(10).¹  He contends that the juvenile court erred in finding that father had not made a reasonable effort to treat the problems that led to the removal of his daughter, Sofia A. (Sofia, born Feb. 2010).

Because we find no abuse of discretion, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Family Background and Prior Dependency Case

This family consists of father, Marissa H. (mother), mother and father's four sons, and mother's daughter from a prior relationship, R.S.

In April 2008, the Department of Children and Family Services (DCFS) received a referral alleging that father had sexually abused R.S. The four sons were detained from father and placed with mother.   Father moved out of the home and R.S. was placed with her maternal grandmother.   Family maintenance services were initiated.

A section 300 petition was filed, and in May 2008, the juvenile court sustained allegations that father had sexually abused R.S. and that father and mother had engaged in violent arguments in the children's presence.

Following noncompliance of juvenile court orders and the case plan, on November 6, 2009, the four sons were detained and placed in foster care.   Specifically, mother allowed father into the home and allowed him unmonitored access to the children.

Sofia is Born and Immediately Detained

While the prior section 300 petition regarding the four sons was pending, Sofia was born.   The day after her birth, DCFS requested a hospital hold as her four siblings were detained and in foster care.   DCFS reported that mother failed to protect her four sons from father.   In particular, she and father “failed to understand why the children were in danger of abuse or neglect despite the sustained court order stating that [father] sexually abused [R.S.], and despite the sustained count of domestic violence between them.   With regards to the sexual abuse, they believe[d] that because [R.S.] no longer ha [d] contact with them ․ there [was] no reason to have a case open.  [Mother] admit[ted] making a mistake in allowing [father] in the home and providing access to the children.”

Father continued “to be in denial of the sustained counts and ․ stated that he [did] not understand why [DCFS] ․ detained his children.   He [refused] to take responsibility for his actions and [continued] to blame [DCFS] for his children being in foster care.”

In addition to his history with the dependency court, father had a lengthy criminal record.   He had been convicted of assault with a deadly weapon likely to produce great bodily injury and was sentenced to a year in jail in 1986.   In 1990, he was convicted of battery.   In 2000, he was convicted of battery on a spouse, ex-spouse, or cohabitant and placed on probation.   In 2005 and 2006, he was convicted twice for driving under the influence;  he was sentenced to 60 days in jail for the latter conviction.   In 2007, father was arrested for robbery;  the case did not result in a conviction.

Although mother and father had enrolled in counseling, they had only just begun and DCFS opined that they were not ready to provide a safe home for Sofia.

According to a progress letter from father's therapist, father had attended five sessions of therapy and was responsive.  “However, per the letter, ․ father [had] not acknowledged that he willfully molested [R.S.] and minimized the extent of the domestic violence.   Per the letter, ․ father [appeared] motivated to change but need[ed] more time.”   The therapist recommended that he continue with the programs related to alcohol abuse and that he continue to attend conjoint counseling session with mother.

Section 300 Petition Concerning Sofia

Based on the foregoing, DCFS filed a section 300 petition on behalf of Sofia, alleging that she came within the jurisdiction of the juvenile court pursuant to subdivisions (a), (b), (d), and (j).  As sustained under subdivision (b) only, the petition alleged:

Count b-2:  Father had a history of alcohol abuse that periodically limited his ability to provide Sofia with regular care;  father had a criminal history of two convictions for driving under the influence of alcohol;  and father's alcohol abuse placed Sofia at risk of harm;

Count b-3:  Father and mother had engaged in violent arguments in the presence of R.S. and the four sons;  on one occasion, father had pushed mother;  father did not complete court-ordered individual counseling to address case issues, including domestic violence;  father's lack of completion of counseling placed Sofia at risk;

Count b-4:  On July 29, 2008, the juvenile court found that father had sexually abused R.S.;   father failed to comply with court orders to complete sex abuse counseling;  mother failed to follow court orders in allowing father to be in the family home frequently without an approved monitor;  “[s]uch sexual abuse, the parents' failure to comply with the Court orders and mother's failure to protect the children place ․ Sofia at risk of physical and emotional harm”;  and

Count b-5:  Mother established a filthy and unsanitary home for the four sons;  this home environment endangers Sofia's physical and emotional health and safety and placed her at risk of physical and emotional harm.

Last Minute Information

On February 22, 2010, DCFS reported that mother and the paternal grandmother visited Sofia on February 17, 2010.   Father showed up during the visit and held Sofia for a short period of time.   Father became upset during the visit because the social worker was speaking in English and the paternal grandmother is Spanish-speaking.   He also became upset when the case and its possible outcomes were being discussed.   When he got upset, Sofia became agitated as well.   He gave Sofia back to mother and left the visit.

DCFS recommended that reunification services not be granted to father pursuant to section 361.5, subdivision (b)(10).

February 22, 2010, Hearing

At the February 22, 2010, hearing, the juvenile court sustained the section 300 petition as amended.   The case was continued for a contested disposition regarding whether to order reunification services for Sofia and father.

Father's Documents for the Contested Disposition Hearing

Prior to the disposition hearing, father provided the juvenile court with a letter from People in Progress, reflecting his enrollment in an outpatient substance abuse program.   As of March 24, 2010, father had attended 37 group and nine individual sessions.   Also, all of his drug and alcohol tests had been negative.   According to the case manager and program manager, father “continue [d] to show positive progress in gaining more self-awareness about his problems with addiction.”

Father also provided the juvenile court with a March 23, 2010, letter from his therapist.   She wrote that father had attended 10 therapy sessions.   In that time, the therapist learned that he “clearly cares for his children” and was “anxious to be reunited with them as soon as possible.   As a result, he [had] been attending his mandated programs in spite of financial and time constraints.”   While father had been “quite responsive to the therapeutic process,” he denied “that he willfully molested” R.S. The therapist believed that conjoint therapy sessions with mother “would be helpful in determining the extent of the violence that occurred in the home and in preventing any future abuse.”

Interim Review Report

On April 9, 2010, DCFS reported that Sofia was doing well in foster care;  she bonded with her foster parents, who were excellent advocates for her.

Father had monitored visits with the four sons.   When discussing the case, father became overly excited;  however, when dealing directly with his children, father behaved appropriately.

While father had monitored visits with Sofia, those visits were inconsistent.   During the visits, father “consistently talked about the case” and only visited with his daughter for approximately 20 minutes.   He would hold Sofia but when he became upset, he would hand the baby to mother and leave the visit.   Father had “not been able to enjoy his visits fully with Sofia.”   Further, father “raise[d] his voice while holding Sofia and agitate[d] her during the visit [s].”  And, father was “unaware how his behavior affect[ed]” his daughter and the “bonding process.”

DCFS noted that following the detention of his four sons, father had about 12 months of reunification services and “was not in compliance with court orders.”   He “refused to participate in services stating that he had to work and support his family and that was more important.”   Although he was ordered out of the home, he was subsequently found in the family home.   While DCFS commended father for participating in services, it noted that he continued “to deny the issues that brought his family to the attention of [DCFS]” and had “yet to accept the sustained petition.”   Ultimately, DCFS recommended that father be denied reunification services with Sofia.

Contested Disposition and Appeal

At the April 9, 2010, hearing, father's attorney argued that father be granted reunification services.   After all, he had made a reasonable effort to treat his problems.   While he may not have “cured his problems” and still had significant work to do in treatment, he was “making a reasonable effort” and making “efforts to visit with his child.”

Father testified that he had been clean and sober for almost six months.   He admitted to sexually abusing R.S. and said that he was learning a lot about sexual abuse in his therapy sessions.   He said that he was talking to his counselor about appropriate boundaries.

As for domestic violence, father stated that he was working with his counselor on this issue, both with mother and individually.

Regarding visitation, father testified that he visited with Sofia three times a week, with each visit lasting two hours.   As for DCFS's assertion that father was inconsistent with his visits, father explained that his work schedule makes visitation difficult.   But he believed that the visits went well.

Following father's testimony, DCFS argued that father be denied family reunification services pursuant to section 361.5, subdivision (b)(10).   Not until almost two years after this family came to the attention of DCFS did father begin some programs, and DCFS asserted that father had not made “significant enough progress.”   He had done “too little too late.”

In so arguing, DCFS reminded the juvenile court that father's family reunification services regarding his four sons terminated in July 2009 and, at that time, father was not in compliance with the case plan.   In fact, he had violated court orders and “just wasn't taking anything seriously.”

Father's attorney rejoined, asserting that father had made reasonable efforts to treat his problems.

Sofia's attorney joined with DCFS and asked that father not receive reunification services.   Not only did he reiterate the arguments made by county counsel, but he also pointed out that father continues to deny the issue that brought the family to DCFS's attention;  he “has yet to accept the sustained petition.”   In sum, there had been no progress.

After entertaining oral argument, the juvenile court ordered “that there not be family reunification services for [Sofia] and ․ father.”   The juvenile court found that father had “not made reasonable efforts to treat nor address the issues [that] brought the other children before this court, and I do not have evidence, least of all by clear and convincing evidence, that family reunification services would be in [Sofia's] best interest.”   The juvenile court noted that the issues in Sofia's case are the same as those in the prior dependency matter, including a history of substance abuse, a history of domestic violence, and a history of sex abuse.  “Those issue[s] were brought before this court with regard to the siblings in July of '08.   In July of '09 the court found that [father] had not complied with the court orders and had not made any progress and the court terminated family reunification services.

“Fast forward.   We have a petition filed on [behalf of Sofia] in February of this year.   Same issues.   So what has [father] done?   On November 25th he enrolled in a substance abuse program at People in Progress.   He's attending that regularly.   I can confirm regular attendance.   I do not have any evidence of progress.   I have evidence of attendance.   Individual counseling to address issues of sex abuse, domestic violence.   He enrolled in two-and-a-half months ago.   He has not made any progress whatsoever-well, he has not made reasonable progress to date.   He has not acknowledged to his therapist that he sexually molested a child.   Today, under oath, must be the first date that he has ever said, yes, I did something wrong.   I'm not convinced that he even has an [ ] understanding of what he did do wrong other than stating that, ‘well, I know how to treat boys but I don't know how to treat girls.   I'd have to learn that.’   He has not accepted responsibility for his [wrongdoing].   He has blamed others.

“The fact that he has just recently enrolled and maybe regularly attending, is insufficient to persuade the court given the totality of the evidence and the kinds of cases before this court that he has made a reasonable effort.   Yes, he does not have to cure the problems.   If he cured the problems, we wouldn't be here for a trial today.”

The juvenile court further commented that while father had had since July 2008 to enroll in programs and make a reasonable effort, he had not done so.   Reunification services terminated in July 2009.   Although father had opportunities to make reasonable efforts at understanding why he was in counseling and what changes he needed to make, he had not done so.   And there was no evidence that reunification services would be in Sofia's best interest.

Finally, the juvenile court made remarks regarding father's visits.   It found that he “consistently takes the time to talk about case issues rather than focusing on the visit.”   The visits wind up being only 20 minutes in length as he becomes upset, hands the baby to mother, and leaves the visits.

Father's timely appeal ensued.

DISCUSSION

I. Standard of Review

The parties agree that we review the juvenile court's order denying father reunification services for abuse of discretion.  (K.C. v. Superior Court (2010) 182 Cal.App.4th 1388, 1394.)   Under this standard, the juvenile court's order cannot be disturbed unless the court exceeded all bounds of reason.  (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)  “ ‘Broad deference must be shown to the trial judge.   The reviewing court should interfere only “ ‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that [he or she] did.’  ․” ' [Citations.]”  (In re Jasmine D (2000) 78 Cal.App.4th 1339, 1351.)

II. The Juvenile Court Did Not Abuse Its Discretion in Denying Father Reunification Services with Sofia

“Notwithstanding the crucial role of reunification services when a child is removed from the home [citation], the Legislature, by enacting section 361.5, subdivision (b), has discerned ‘․ it may be fruitless to provide reunification services under certain circumstances.’  [Citations].”  (In re Joshua M. (1998) 66 Cal.App.4th 458, 467.)

Section 361.5, subdivision (b) provides, in relevant part:  “Reunification services need not be provided to a parent ․ when the court finds, by clear and convincing evidence ․ [¶] ․ [¶] (10) That 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 ․ pursuant to Section 361 and that parent ․ is the same parent ․ described in subdivision (a) ․ 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.” (§ 361.5, subd. (b)(10).)

Father falls squarely within the parameters of section 361.5, subdivision (b)(10).   The juvenile court previously ordered termination of reunification services for father and his four sons.   And, father has failed to make a reasonable effort to treat the problems that led to the removal Sofia's siblings.   Sofia was removed from father's custody partly because of a juvenile court finding in July 2008 that he had sexually abused Sofia's half-sister, R.S. Yet father had not done much to treat that problem.   At the time of Sofia's birth in February 2010, father maintained that he did not understand why DCFS had removed his children from his custody, refused to accept responsibility for his actions, and blamed DCFS for his children being placed in foster care.   On February 16, 2010, father's therapist advised the juvenile court that he still had “not acknowledged that he willfully molested” R.S.;   in fact, one month later, father denied that he willfully molested R.S. Even at the time of the April 9, 2010, hearing, father still would not take responsibility for what he had done.   Under these circumstances, we readily conclude that the juvenile court did not abuse its discretion in denying father reunification services with Sofia.

Relying heavily upon Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, father urges us to reverse the juvenile court's order.   He argues that the juvenile court “ran afoul” of Renee J. by denying him reunification services only because he failed to reunify with his four sons.   After careful consideration of the appellate record, we disagree.   The juvenile court denied father reunification services with Sofia not solely because he failed to reunify with his four sons;  rather, he was denied reunification services because the juvenile court found that father failed to understand what he had previously done wrong and had not made any progress towards addressing those issues.   While father was taking steps in the right direction by enrolling and attending various programs and counseling, he did not make a reasonable effort to treat the problems that led to the removal of his four sons.   Accordingly, the juvenile court did not err in denying father reunification services.

DISPOSITION

The juvenile court's order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ASHMANN-GERST

We concur:

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

_, Acting P.J. DOI TODD _, J. CHAVEZ