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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Coming Under the Juvenile Court Law. 2d Juv. No. B253250 (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 juve nile court's order denying her request for a court order requiring Ventura County Human Services Agency (HSA) to provide services that would reunify her w ith Christine T. and Jasmine T.

― two of her six children. Mother does not contest the jurisd ictional 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 th at the juvenile court should have provided her reunification services because doing so is in the best interests of the children. We
affirm.2 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 week s, Mother and Patrick S. brutally tortured and murdered 14-month-old Demetri, a deve lopmentally 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 pare ntal rights were terminated as to Patricia
and Patrick. Mother was arrested on charges relate d to the death of Demetri. She was convicted of voluntary manslaughter and mayh em and was sentenced to six years in prison. She was released on parole on March 7, 2006. In March 2006, Mother met Father a nd became pregnant with Christian T.
within the next few months. Christian wa s born in March 2007, and was immediately detained in protective custody. In April 2007, the court sustained HSA's Welfare and Institutions Code
section 300 1 petition finding Mother had an extensiv e drug history, ga ve 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 abus e issues. Based upon this history, the juvenile court found reunificati on 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 pr ovided reunification services but they were bypassed as to Mother. Mother 's and Father's parental right s were eventually terminated and R. was adopted.

1 All statutory references are to the Welfare and Institutions Code.3 In May 2008, Mother filed a petiti on with the juvenile court seeking
reunification services with Christian. Her re quest was denied. The juvenile court noted the steps taken by Mother in pr ison and thereafter to reform her life but said, "The reason this case exists is because [M]o ther allowed a child in her care to be tortured and killed. She puts much blame for her behavior on the f act she was under the influence of heroin. But that is simply not a good enough expl anation. 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 certainl y 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 a nd in April 2009, Christian's first dependency was dismissed. Father was aw arded sole legal and physical custody of Christian. Mother was perm itted only supervised access to Christian and Father was not permitted to be the supervisor. Mother and Father disregarde d the court orders issued to ensure Christian's safety. Three months af ter 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 livin g together with both
children. In May 2011, Christian, three and Ja smine, one, became dependent children based upon Mother's history and because Fath er failed to protect them by refusing to regard Mother's substance abuse and crimin al history as a threat to their safety. In June 2011, the juvenile court su stained the petitions under section 300, subdivisions (b) and (f). A lthough HSA recommended that reunification services be bypassed as to both parents, the juvenile court determined that clear and convincing
evidence showed that Mo ther 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 "ove r 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 Fath er disregarded the court's custody and4 visitation orders, there was no evidence Moth er 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 ha ve a close bond with their parents. The children's need for stability and con tinuity of care wo uld be served by allowing these parents to a ttempt 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 inte rests of the children and ordere d HSA to provide reunification services to the family. These findings and orde rs were not appealed. Father and Mother participated in the reunification services offered by HSA and the dependency case was dismissed in Ma y 2012. Mother and Father were awarded joint legal and physical custod y of Christian and Jasmine. Five months after the juvenile co urt 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 Ra ndy O. Randy began using drugs when he was 19 and used methamphetamine and mari juana off and on un til he was 28. He resumed the use of drugs after Mother became pregnant with his chil d 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 ev en while reunification services were being provided to her. In October 2012, Mother wa s arrested for being under the influence of amphetamine and opiates and tested positive fo r 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 ta ken into protective custody. In November 2012, the juvenile court sustaine d petitions and then di smissed them, awarding sole legal and physical cust ody to Father. Mother was allowed access to the children only if it was professionally supervised. It ma de clear to Father th at Mother would need5 to document her participation for at least a year in a credible substance abuse treatment program before any changes to the vi sitation 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 la ter, Father and Mother agreed to and signed a stipulation that allows Moth er unsupervised access to the children. The family court simply adopted the stipulation and made it th e order of the court without a hearing. Mother refused to document her participa tion 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, 20 13, Christian and Jasmine were again detained as dependents of the juve nile 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, subdivisi on (b)(4) apply to Mother and warrant an order denying her reunifica tion services unless she proved by clear and convincing
evidence that reunification is in th e best interests of the children. The issues raised by the HSA pleading s 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 inte rests 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 pr ovide services. The order as to Father is not challenged on this appeal.
DISCUSSION The general rule is that reunificati on services must be offered when a dependent child is removed from the physical cu stody of a parent or guardian. (§ 361.5, subd. (a); In re Ethan C. (2012) 54 Cal.4th 610, 626.) Serv ices need not be provided, however, when the court finds based upon cl ear and convincing evidence that one or
more of the circumstances listed in s ection 361.5, subdivision (b) exists. ( Ibid. ) These6 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 serv ices 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 unwi se use of governmental resources. ( In re Allison
J. (2010) 190 Cal.App.4th 1106, 1112.) Nevertheless, even when bypass circ umstances exist, the juvenile court may provide reunification services if it fi nds, by clear and convincing evidence, that
reunification — not reunification se rvices — is in the dependen t child's best interests. (§ 361.5, subd. (c); In re D.F. (2009) 172 Cal.App.4th 538, 5 48.) 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 determin ing 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 re lative 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 pare nt 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.Ap p.4th 1220, 1227.) An order denying reunification servi ces 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 ev idence 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.Ap p.4th 612, 622.) Mother argues "clear and convincing evidence establishe d that it was in [the children's] best interest s that she be provid ed 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 conv incing evidence that7 reunification is in the best interests of the children before reunification services are
considered. Until this founda tional element is proved, a di scussion of whether Mother and the children might benefit from reuni fication services is not germane. Here, the juvenile court's thorough a nd thoughtful ruling identified a variety of specific risks that decidedly support the c onclusion that reunification is not in the best
interests of these children. Th ey include: (1) Mother's par ticipation in the brutal torture and murder of a helpless 14-month-old deve lopmentally disabled child; (2) Mother's conviction of a violent felony that relates sp ecifically to neglect and abuse of a child; (3) Mother's chronic, severe history of untreat ed 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 a nd opiates for her personal satisfaction; (5) Mother's unwillingness to pr otect the children from the presence of drugs, addicts and drug dealers; (6) the termin ation of Mother's parental rights to three of her six children; (7) Mother's in tentional violation of the juve nile court's exit orders that were designed to protect Christian and Jasmin e; (8) exposing the ch ildren to persons with a history of criminal activity and outstandi ng 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 pr oceedings and treatment plans. Mother relies heavily on the juven ile 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, lovi ng mother." This order, Mother argues, makes the brutality in 2000 th e work of a different person a nd 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 inte rests of these children.8 The record supports the juvenile c ourt's conclusion that Mother made nothing more than minimal progress toward m itigating the serious issues that affect her ability to parent the children. We agree w ith the court that Mother did not carry her burden of showing by clear and convincing evidence that reunifi cation 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 Cour t of San Luis Obispo County, assigned by the Chief Justice pursuant to art. 6, § 6 of the Cal. Const.)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 C ounsel, County of Ventura, Alison L. Harris, Assistant County C ounsel for Petitioner and Respondent.