San Bernardino Cnty. Children v. B.A. (In re I.A.)

40 Cal.App.5th 19

252 Cal.Rptr.3d 774

IN RE I.A. et al., Persons Coming Under the Juvenile Court Law.

San Bernardino County Children and Family Services, Plaintiff and Respondent,

v.B.A. et al., Defendants and Respondents;

I.A. et al., Appellants.

E071757

Court of Appeal, Fourth District, Division 2, California.

Filed September 18, 2019

Melissa A. Chaitin, Valley Village, under appointment by the Court of Appeal, for Appellants.

Valerie Ross, Victorville, for Defendant and Respondent B.A.

Jacques Alexander Love, Palmdale, under appointment by the Court of Appeal, for Defendant and Respondent D.V.

Michelle D. Blakemore, County Counsel, and Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

CODRINGTON J.

IINTRODUCTION¹

B.A. (Mother) and D.V. (Father) are the parents of six-year-old I.A.-V. (I.) and eight-year-old Is.A.-V. (Is.).² Mother and Father have a history with child protective services due to ongoing domestic violence and neglect issues, resulting in the removal of their children from their care. This is I. and Is.'s third dependency.

I. and Is. were first removed from Mother in 2015. At the close of the first dependency, Mother's reunification services were terminated, and Father received legal and physical custody of I. and Is. In 2017, I. and Is. were removed from Father's custody and placed with Mother as a previously noncustodial parent. The second dependency resulted in Mother receiving legal and physical custody of the children and termination of Father's reunification services.

The third and current dependency commenced in 2018 after I., Is., and A.A. were removed from Mother's care for the same reasons as previously. At the dispositional hearing, the San Bernardino County Children and Family Services (CFS) recommended to bypass reunification services pursuant to Welfare and Institutions Code section ³ 361.5, subdivision (b)(10) (hereafter 361.5(b)(10)), as to all three children. The juvenile court agreed to bypass Mother's services as to A.A. However, the court interpreted I. and Is. to be "the same child" under the statute and granted Mother reunification services as to I. and Is. Counsel for I. and Is. subsequently appealed.

On appeal, minors' counsel argues that the juvenile court erred in ordering reunification services for the parents in I. and Is.'s case after it found the bypass provision under section 361.5(b)(10) did not apply. County counsel agrees and urges this court to remand the matter with directions the juvenile court reassess the application of section 361.5(b)(10) with the understanding that I. and Is. are "siblings" rather than "the same child" within the meaning of this bypass provision. For the reasons explained, we find that the bypass provision under section 361.5(b)(10) applies to the "same child" or "same children." Accordingly, we reverse the juvenile court's finding that section 361.5(b)(10) did not apply to this case, and remand the matter to the juvenile court with directions to enter an order denying further reunification services to the parents in I. and Is.'s case.

IIDISCUSSION⁴

Counsel for I. and Is. argues the juvenile court erred in finding the bypass provision under section 361.5(b)(10) did not apply in their case. Counsel therefore asserts the court erred in ordering reunification services for the parents in their case.

A. Standard of Review

The minors' argument involves an issue of statutory interpretation, which we review de novo. ( In re Joshua A. (2015) 239 Cal.App.4th 208, 214-215, 190 Cal.Rptr.3d 655.) "In ascertaining legislative intent, we look first to the words of the statute, giving effect to their plain meaning. [Citation.] If the statutory language is clear and unambiguous, we presume the Legislature meant what it said and the plain meaning of the statute governs. [Citation.] We construe the language in the context of the statute as a whole and the overall statutory scheme, and give significance to every word, phrase, sentence and part of an act in pursuing the legislative purpose." ( Ibid. )

" ‘ "Appellate courts may not rewrite unambiguous statutes" ’ or ‘rewrite the clear language of [a] statute to broaden the statute's application.’ [Citation.] It is only when the language supports more than one reasonable construction that we consult legislative history, the ostensible objects to be achieved, or other extrinsic aids in order to select the construction that most closely comports with the legislative intent." ( Melissa R. v. Superior Court (2012) 207 Cal.App.4th 816, 822, 144 Cal.Rptr.3d 48 [holding the plain language of section 361.5(b)(10) does not apply to sibling who had been removed pursuant to the laws of another state, and thereby had not been "removed ... ‘pursuant to Section 361’ "].)

B. Reunification Services Generally

Generally, the juvenile court is required to provide reunification services to a child and the child's parents when a child is removed from parental custody under the dependency laws. ( § 361.5, subd. (a).) The purpose of providing reunification services is to "eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible." ( In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478, 73 Cal.Rptr.2d 793.) It is also the legislative intent, "that the dependency process proceed with deliberate speed and without undue delay." ( Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1151, 96 Cal.Rptr.2d 104.) "Thus, the statutory scheme recognizes that there are cases in which the delay attributable to the provision of reunification services would be more detrimental to the minor than discounting the competing goal of family preservation. [Citation.] Specifically, section 361.5, subdivision (b), exempts from reunification services ‘ "those parents who are unlikely to benefit" ’ [citation] from such services or for whom reunification efforts are likely to be ‘fruitless’ [citation]." ( Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1120, 223 Cal.Rptr.3d 749 ( Jennifer S. ).)

When the juvenile court concludes reunification efforts should not be provided, it " ‘ "fast-tracks" ’ " the dependent minor to permanency planning so that permanent out-of-home placement can be arranged. ( Jennifer S. , supra , 15 Cal.App.5th at p. 1121.) The statutory sections authorizing denial of reunification services are commonly referred to as " ‘bypass’ " provisions. ( Ibid. ) One exception may be found where "the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 ... and that, according to the findings of the court, this parent or guardian 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 or guardian." ( § 361.5(b)(10).) "To apply section 361.5, subdivision (b)(10), therefore, the juvenile court must find both that (1) the parent previously failed to reunify with a sibling [or half sibling ] and (2) the parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling [or half sibling]." ( In re Albert T. (2006) 144 Cal.App.4th 207, 217, 50 Cal.Rptr.3d 227, italics added.)

Once it has been determined one of the situations enumerated in section 361.5, 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. [Citation.]" ’ [Citation.]" ( In re William B. (2008) 163 Cal.App.4th 1220, 1227, 78 Cal.Rptr.3d 91 ; accord, In re A.G. (2012) 207 Cal.App.4th 276, 281, 143 Cal.Rptr.3d 33.) Thus, if the juvenile court finds a provision of section 361.5, subdivision (b), applies, the court "shall not order reunification for [the] parent ... unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." ( § 361.5, subd. (c)(2).) "The burden is on the parent to ... show that reunification would serve the best interests of the child." ( William B. , at p. 1227, 78 Cal.Rptr.3d 91 ; accord, A.G. , at p. 281, 143 Cal.Rptr.3d 33.)

C. Relevant Additional Background

I. and Is. are full siblings who were removed, returned, and again removed from parental custody at the same time. In addition, section 300 petitions on behalf of I. and Is. were filed at the same time. Prior to the dispositional hearing in I., Is., and A.A.'s cases, the juvenile court issued a written tentative order, finding section 361.5(b)(10) did not apply in I. and Is.'s case, despite its "continued finding and opinion that reunification is not in the best interests of the minors ...."

Recognizing that there was a split of authority in the appellate courts, the court explained as follows: "2. With respect to the minors I[.] and Is[.], they were the same two minors removed from the mother in the 2015 dependency case where she failed to reunify. [¶] 3. In re Gabriel K. (2012) 203 C[al.]A[pp.]4th 188, 136 Cal.Rptr.3d 813 [ ( Gabriel K. ) ], holds that the previous termination of services for one child may justify denial of services under WIC 361.5(b)(10) for the same child. [¶] 4. However, in In re B.L. (2012) 204 C[al.]A[pp.]4th 1111, 139 Cal.Rptr.3d 525 [ ( B.L. ) ] and J.A. v. Superior Court (2013) 214 C[al.]A[pp.]4th 279, 153 Cal.Rptr.3d 774 [ ( J.A. ) ], the courts held that the plain language of the statute references only ‘siblings or half siblings,’ and, therefore, does not permit the same child to be the subject of the prior termination of services and the new dependency. [¶] 5. Not only is the Court of Appeal in the B.L. case from the Fourth Appellate District where this Court sits (albeit not the same division), but ...