In re B.M. CA4/2

Filed 6/11/21 In re B.M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re B.M. et al., Persons Coming Under
the Juvenile Court Law.

SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E075825

Plaintiff and Respondent, (Super.Ct.Nos. J281951, J281952
& J281953)
v.
OPINION
R.M.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,

Judge. Affirmed.

Liana Serobian, under appointment by the Court of Appeal, for Defendant and

Appellant.

Michelle D. Blakemore, County Counsel, and Pamela J. Walls, Special Counsel,

for Plaintiff and Respondent.

1
 INTRODUCTION

Defendant and appellant R.M. (father) challenges the juvenile court’s order

denying him reunification services pursuant to Welfare and Institutions Code1 section

361.5, subdivision (b)(13). He contends the court made a mistake of law when it

considered his failure to participate in voluntary enhancement services provided after the

filing of the dependency petition as the requisite court-ordered services under section

361.5, subdivision (b)(13). He also argues his equal protection rights were violated in

denying him services. We affirm.

PROCEDURAL BACKGROUND

On August 6, 2019, the San Bernardino County Children and Family Services

(CFS) filed a section 300 petition on behalf of B.M., R.M., and K.M. (the children).2

B.M. was three months old, R.M. was 17 months old, and K.M. was nine years old at the

time. The petition alleged that the children came within section 300, subdivisions (b) and

(d). Specifically, it alleged that father struggled with substance abuse, had a history of

engaging in inappropriate sexual contact with a four-year-old child, was currently under

criminal investigation for possession of child pornography, and failed to protect the

children since they were exposed to domestic violence in the home. The petition also

1 All further statutory references will be to the Welfare and Institutions Code
unless otherwise indicated.

2 CFS filed a separate petition on behalf of each child. Since the petitions contain
the same allegations, we will refer to them collectively as one petition.
2
alleged that the children’s mother, V.J. (mother),3 knew or reasonably should have

known that father struggled with substance abuse and failed to protect the children from

being exposed to domestic violence in the home.

The court held a hearing on August 7, 2019, found that a prima facie case had

been established, and ordered the children detained from father. The court allowed the

children to remain in mother’s custody on the condition that father not reside in the home

or have contact with the children outside of county agency supervision.4

Jurisdiction/Disposition

The social worker filed a jurisdiction/disposition report on August 23, 2019,

recommending that the court sustain the petition and provide mother with family

maintenance services and father with reunification services. The social worker

interviewed father. He admitted using methamphetamine and stated that he was using

drugs two to three times a week. The social worker expressed her concern with father

having access to child pornography and young children, including his own daughters, and

stated that he appeared to be in denial about his child pornography problem. However,

he did have insight about his drug use and the role it had in the removal of the children

from his care. He said he began using methamphetamine at age nine, and he started

3 Mother is not a party to this appeal.

4 We note the detention report reflects that the social worker recommended the
children to remain with mother on the condition that mother not reside in the home.
However, this appears to be an error since the recommendation was to remove the
children from father’s custody.
3
manufacturing it at age 13. He reported that by age 16, he had 32 juvenile felony

charges.

The social worker attached a case plan for father, which required him to

participate in a domestic violence program and counseling, complete a parenting

education program and an anger management program, complete an outpatient substance

abuse program, and comply with random and/or on-demand substance abuse testing.

The court held a jurisdiction/disposition hearing on August 28, 2019. The parties

agreed to amend father’s case plan to include addressing anger management in his

counseling, rather than as a separate requirement. The court found that the children came

within section 300, subdivisions (b) and (d), and declared them dependents. It adopted

the recommended findings and orders, approved the case plan, and ordered mother to

participate in family maintenance services and father to participate in reunification

services.

Section 364 Status Review

The social worker filed a status review report on February 20, 2020,

recommending that the children remain in mother’s home and the dependency be

continued. The social worker reported that prior to December 2019, father was not in

contact with CFS. He did not follow through with service referrals or arranged

appointments for substance abuse treatment, counseling, domestic violence, and

parenting education. Since December 2019, father had been in communication with CFS

and was referred again for all services. The social worker specifically reported that he

was referred for substance abuse services at Inland Valley Recovery Services (IVRS) on

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August 23, 2019, with a start date of September 6, 2019. However, he did not follow

through with any treatment services. He was again referred on January 7, 2020, with

services to begin on January 13, 2020. The social worker requested, but did not receive,

an update from IVRS on his attendance and participation in outpatient services.

Father was also referred to Youth Hope Agency for a domestic violence program,

a parenting education program, and counseling with a start date of September 30, 2019.

However, he failed to follow through with the services. He was then referred for services

with Asante Family Services to begin in February 2020. He attended on February 3,

2020, but failed to show up on February 10, 2020.

The social worker further reported that father signed an acknowledgment that the

court ordered him to randomly drug test through the color code system in October 2019.

On December 19, 2019, he admitted to the social worker that he had not been calling in

to the color code system, and he was still using methamphetamine. During that reporting

period, he had been called to test eight times, and he was a “no show” each time.

The social worker also reported that father had been staying with various

individuals, sleeping on the streets, and staying in motels; however, she was concerned

that he may have been living with mother and the children.

The social worker opined that a substantial risk of detriment remained if the

children were returned to father’s care due to his noncompliance with drug testing,

substance abuse treatment, domestic violence classes, and counseling. The social worker

stated that although he had made minimal progress during that reporting period, he had

begun services and was cooperative with CFS; thus, she recommended he continue the

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court-ordered services. The social worker also updated the case plan to add the

requirement that father attend a 12-step program.

The court held a review hearing on February 27, 2020, and adopted the social

worker’s findings and recommendations and continued the children as dependents.

Supplemental Section 387 Petition

The social worker filed a supplemental section 387 petition on August 18, 2020,

alleging that mother violated court orders by allowing father into the home, that she

refused CFS access to the children, neglected the children’s medical care, and kept the

home in an unsanitary and hazardous state. The social worker thus recommended that the

children be placed in foster care. In a detention report, the social worker reported that

father had not completed any of the court-ordered services and only drug tested once in

July 2019, at which time he tested positive for methamphetamine. Furthermore, on June

29, 2020, mother admitted that father’s visits were occurring in the home, with her

parents supervising. Mother had been warned every month by the social worker that he

should not be given access to the children without a visit supervisor present, and that he

should not be in the home. The social worker recommended that both father and mother

(the parents) not receive reunification services.

The court held a detention hearing on August 19, 2020, and found that a prima

facie case had been established for removal. The court removed the children from

mother’s custody and detained them in foster care. The court then continued the matter

for a jurisdiction/disposition hearing.

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 Jurisdiction/Disposition

The social worker filed a second jurisdiction/disposition report on September 3,

2020, recommending that the court sustain the section 387 petition and the children be

placed in out-of-home care with family reunification services for mother, but no services

for father. The social worker reported that the previous disposition had not been effective

since mother failed to take adequate measures to protect the children. She allowed father

to move back into the home and have unauthorized access to the children, despite the

court ordering him to only have supervised visits and not be in her home. She also

neglected the children’s medical care and had not provided a safe and sanitary home for

them.

The social worker reported that she signed the parents up for on-demand testing on

August 14, 2020. They missed the drug test even though they were notified that any

missed tests would be considered a positive test. The court then ordered on-demand

testing, and they missed the test again on August 19, 2020.

The social worker also stated she received a police report dated April 24, 2020,

stating that father was arrested for being in possession of a methamphetamine pipe.

(Health & Saf. Code, § 11364, subd. (a).) Father told the police he did not use

methamphetamine every day, but he had used earlier that day.

The social worker recommended that father be denied reunification services under

section 361.5, subdivision (b)(10) and (b)(13), since he failed to participate in the

reunification services that were offered to him and failed to demonstrate a lifestyle free

from substance abuse. She reported that she had attempted to call both parents and leave

7
voicemails and text messages, but father changed his phone number. The social worker

stated that the parents had been evasive and untruthful with CFS.

The court held a jurisdiction/disposition hearing on the section 387 petition on

September 9, 2020. The parents failed to appear, but they were represented by counsel.

Father’s counsel reported that he had talked to father on the day of the detention hearing

and informed him of the next court date, but he had not been able to contact him since

then. The court sustained the allegations in the section 387 petition and continued the

children as dependents. In her report, the social worker recommended that the court

bypass father’s services under section 361.5, subdivision (b)(10) and (b)(13). However,

at the hearing, she asked the court to strike the written allegations under 361.5,

subdivision (b)(10) and (b)(13), and just find that services should not be provided to him

since he “timed out.” After some discussion, the court stated that it could not terminate

services because father “timed out” and noted because the children were initially not

removed from mother’s custody, father had “discretionary services, not statutory

services.” However, it found that section 361.5, subdivision (b)(13), was an appropriate

bypass provision and that it applied here. Thus, the court denied father services finding

that he had a history of extensive and chronic use of drugs and had failed or refused to

comply with a program of drug treatment described by the case plan on at least two prior

occasions, even though the programs identified were available and accessible.

8
 DISCUSSION

Substantial Evidence Supports the Court’s Order Denying Father Reunification Services

Father argues that the court made a mistake of law when it applied his failure to

participate in voluntary enhancement services that “came into being after the filing of the

dependency petition” to the bypass provision under section 361.5, subdivision (b)(13). In

other words, he claims that the court ordered enhancement services, not reunification

services, and such enhancement services did not qualify under the statute since they were

not ordered prior to the filing of the dependency. He further claims they were voluntary

in nature and did not constitute the “court-ordered services” required under the statute.

Father then contends that it was in the children’s best interests to have an opportunity to

reunify with both parents since he was the presumed father, mother was offered

reunification services, this was the first time the children had come to the juvenile court’s

attention, and because denying him services “was not in line with legislative purpose and

priority of reunification.” Father additionally claims that his equal protection rights were

violated since he was treated differently from other presumed fathers. We conclude the

court properly bypassed his reunification services under section 361.5, subdivision

(b)(13).

A. Standard of Review

“Ordinarily, when a child is removed from parental custody, the juvenile court

must order services to facilitate the reunification of the family. [Citation.]

‘ “Nevertheless, as evidenced by section 361.5, subdivision (b), the Legislature

recognizes that it may be fruitless to provide reunification services under certain

9
circumstances. [Citation.] Once it is determined one of the situations outlined in

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.] An order denying reunification services is reviewed for substantial evidence.”

(R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 914 (R.T.).) “ ‘All conflicts must be

resolved in favor of the respondent and all legitimate inferences indulged in to uphold the

verdict, if possible. Where there is more than one inference which can reasonably be

deduced from the facts, the appellate court is without power to substitute its deductions

for those of the trier of fact.’ ” (Francisco G. v. Superior Court (2001) 91 Cal.App.4th

586, 600.)

B. The Court Properly Applied Section 361.5, Subdivision (b)(13)

Section 361.5, subdivision (b)(13), authorizes a juvenile court to deny services to a

parent when he “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.” (§ 361.5, subd. (b)(13),

italics added.) Section 361.5, subdivision (b)(13), “ ‘reflect[s] a legislative determination

that an attempt to facilitate reunification between a parent and child generally is not in the

minor’s best interests when the parent is shown to be a chronic abuser of drugs who has

resisted prior treatment for drug abuse.’ [Citation.] Experience tells us that such a parent

10
has a high risk of reabuse. [Citation.] This risk places the parent’s interest in reunifying

with her child directly at odds with the child’s compelling right to a ‘placement that is

stable, permanent, and that allows the caretaker to make a full emotional commitment to

the child.’ ” (In re William B. (2008) 163 Cal.App.4th 1220, 1228.)

Father does not dispute that he has a history of extensive, abusive, and chronic use

of drugs as specified by section 361.5, subdivision (b)(13). Instead, he argues the court

erred in applying the subdivision here since there is no evidence he resisted court-ordered

treatment during a three-year period immediately prior to the filing of the petition.

However, section 361.5, subdivision (b)(13), may be satisfied by showing either

resistance to court-ordered treatment during the three years prior to the filing of the

petition or failure or refusal to comply with a program of drug treatment described in the

case plan required by section 358.1. (§ 361.5, subd. (b)(13).) Section 358.1 lists the

information that should be in the social study required by section 358 and requires a

social worker’s report to discuss “[w]hat plan, if any, for return of the child to his or her

parents and for achieving legal permanence for the child if efforts to reunify fail, is

recommended to the court by the county welfare department or probation officer.”

(§ 358.1, subd. (b).) This subdivision refers to return of the child and the options that

may exist for permanency if reunification efforts fail. Since the plan referred to in

section 358.1 is a reunification plan, the second prong of section 361.5, subdivision

11
(b)(13), permits a bypass of services when a parent fails to comply with services offered

as a part of a reunification plan on at least two occasions.5

Here, the court bypassed father’s services under the second prong of section 361.5,

subdivision (b)(13), not both prongs, as father discusses extensively. The court

specifically found that he “failed or refused to comply with a program of drug []

treatment described by the Case Plan on at least two prior occasions, even though the

programs identified were available and accessible.” The record shows that the court

approved the case plan and ordered father to participate in reunification services at the

original jurisdiction/disposition hearing on August 28, 2019. His initial case plan

included the requirements that he complete an outpatient substance abuse program and

comply with random and/or on-demand substance abuse testing. At the section 364

status review hearing, the court found Father had failed to participate in his reunification

services and had made minimal progress. Father conceded he was still using

methamphetamine and all eight of his random drug tests were “no-shows.” Father did

not follow-through with substance abuse treatment, a domestic abuse program, parenting

education or individual therapy. Father did claim to have signed up for a 12-step

program; however, he provided no evidence of signed 12-step attendance cards. The

5 We note father’s claim that “two prior occasions” means two prior dependency
cases. However, the language of the statute only says the parent must have “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.” (§ 361.5, subd. (b)(13), italics
added.) It says nothing about two prior dependency cases.
12
juvenile court approved and ordered a second “updated” case plan (adding the 12-step

program for substance abuse).

Later, at the hearing on the section 387 petition, the court found Father’s progress

with reunification services had “been absent.” Thus, the evidence clearly shows that on

two separate occasions father failed to comply with the reunification services requiring

substance abuse treatment ordered by the court as required by section 361.5, subdivision

(b)(13). He was referred for substance abuse services on August 23, 2019, but he did not

follow through with any treatment services. Furthermore, although he was ordered to

randomly drug test through the color code system, he admitted to the social worker that

he was not calling in to the color code system and was still using methamphetamine. He

was scheduled to test eight times and failed to appear each time. As of September 9,

2020, the social worker reported that father still had not completed any services, and he

only drug tested once in July 2019, when he tested positive for methamphetamine.

Therefore, the evidence was sufficient to support the court’s bypass of father’s services

under section 361.5, subdivision (b)(13).

Father claims that the court bypassed his reunification services under section

361.5, subdivision (b)(13), “without giving any reasonable explanation or grounds” for

finding the statute applicable. However, at the hearing, the court stated that it initially

“scratched out” the finding (written in the social worker’s report) that father “has a

history of extensive, abusive, and chronic use of drugs or alcohol; has failed or refused to

comply with a program of drug [] treatment described by the Case Plan on at least two

prior occasions, even though the programs identified were available and accessible.”

13
However, the court said, “. . . but I reinstated it, and I’m making that (b)13 finding. I did

it orally, and [I’m] also initialing it indicating that [it] does apply.” It then expressly

adopted the social worker’s recommended findings and orders.

Father also claims the court found he was only offered discretionary enhancement

services, and such services did not qualify under section 361.5, subdivision (b)(13), since

they were not ordered prior to the filing of the dependency petition, and they were

voluntary in nature. However, his argument is mistakenly referring to the first prong of

the subdivision, which states that the parent has to have “resisted prior court-ordered

treatment for this problem during a three-year period immediately prior to the filing of

the petition.” (§ 361.5, subd. (b)(13).) As discussed ante, the court did not rely on that

prong of the subdivision in denying father services. Although it is unclear what the court

meant when it said father had “discretionary services, not statutory services,” it properly

bypassed father’s reunification services pursuant to the second prong of section 361.5,

subdivision (b)(13). (See ante.) Moreover, contrary to father’s characterization that the

services ordered were discretionary enhancement services, the record demonstrates that

the court ordered him to participate in reunification services.

C. Father Has Not Shown It Was in the Children’s Best Interests to Order

Reunification Services

Father argues that it was in the children’s best interests to have an opportunity to

reunify with both of their parents, noting that the court ordered reunification services for

mother. He asserts that he was a presumed father, he and mother wanted to remain a

married couple, and to deny him reunification services was “not in line with” the

14
legislative priority of reunification. Father has not shown that it was in the children’s

best interests to order reunification services for him.

Section 361.5, subdivision (c)(2), provides that the court shall not order

reunification for a parent described in subdivision (b)(13) “unless [it] finds, by clear and

convincing evidence, that reunification is in the best interest of the child.” None of the

reasons listed by father establish that it was in the children’s best interests to reunify with

him. Once the court determined that section 361.5, subdivision (b)(13), applied, “ ‘ “the

general rule favoring reunification [was] replaced by a legislative assumption that

offering services would be an unwise use of governmental resources.” ’ ” (R.T., supra,

202 Cal.App.4th at p. 914.) In view of the fact that father was already provided with

referrals for services and failed to participate in or complete any of the programs, offering

more services to him would certainly be an unwise use of governmental resources.

D. Father Has Not Established a Violation of Equal Protection Rights

Father claims that “for the same reasons argued above,” his equal protection rights

under the federal and state Constitutions were violated. He argues that he is similarly

situated to other presumed fathers who are entitled to reunification services and

essentially claims that his equal protection rights were violated “by the [court’s] mistaken

application of the law.” Father’s contention that the court misapplied section 361.5,

subdivision (b)(13), to his case is without merit, thus, invalidating his equal protection

claim. (See § B., ante.)

Ultimately, the court properly applied section 361.5, subdivision (b)(13), here and

there was sufficient evidence to support its decision to bypass father’s services.

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 DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.

We concur:

CODRINGTON
Acting P. J.

SLOUGH
J.

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