Brandy R. v. Sup. Ct.

Filed 10/12/06 Brandy R. v. Sup. Ct. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for extraordinary writ. David Cohn, Judge. Petition denied.

Brian Huerter for Petitioner.

No appearance for Respondent.

Dennis E. Wagner, Interim County Counsel, and Dawn M. Messer, Deputy County Counsel, for Real Party in Interest.

1. Introduction

In this petition for extraordinary writ under California Rules of Court, rule 38.1, mother Brandy R. challenges the juvenile court’s orders declaring Jacob R. a dependent child of the court based on severe physical abuse under Welfare and Institutions Code section 300, subdivision (e),[1] and denying reunification services for the same reason under section 361.5, subdivision (b)(5). In addition to challenging the court’s jurisdictional finding, mother also claims that she did not receive proper notice that she would be denied services based on the allegation of physical abuse.

We conclude that there is no requirement that mother be given notice of the exact reason for denying reunification services. We also conclude that substantial evidence supported the court’s findings. We deny mother’s petition.

2. Factual and Procedural History

Mother had four children, Lexia V. (born 2000), Jacob R. (born 2002), William R. (born 2003), and Katelyn P. (born 2005). Jacob was born with Down’s Syndrome. This appeal involves only Jacob.

Mother had a long history of prior contacts with the San Bernardino Department of Children’s Services (DCS), including four sustained petitions for general neglect and inadequate supervision. Lexia and Jacob were removed in 2003 and mother’s noncompliance led to the termination of reunification services, but the children were returned to mother under a family maintenance plan after a failed attempt to place the children with a relative.

On April 11, 2006, DCS received a referral that mother and her current husband, Steven P., were involved in a physical altercation, resulting in Steven’s arrest. The referent also reported that mother would restrain Jacob and William to the sofa with a harness.

The social worker investigated the allegations and attempted to locate mother and the children. At the family’s residence, the social worker noticed the harness on the sofa. After a couple days of searching, the social worker found Jacob with his grandmother at a Taco Bell. Mother apparently did not have room in her friend’s car, so she left Jacob with his grandmother, who was unable to care for him because of a recent surgery. Jacob was filthy with his face covered in dirt. His feet were black, he had no socks, and his shoes were the wrong size. Mother had left him without diapers or a change of clothes. Jacob had some marks and bruising around his left eye. Jacob’s grandmother informed the social worker that, in December, she had noticed that Jacob’s buttocks were very bruised and mother was responsible for that injury. Jacob was taken into protective custody and placed in foster care.

The social worker located mother after mother called DCS on April 14, 2006. The other children were placed in foster care. Mother explained that her husband hit her while she was holding five-month-old Katelyn. She also explained that Jacob got his black eye from falling on the corner of a mattress. Mother admitted using methamphetamine and marijuana. The last time she used methamphetamine was two weeks earlier.

According to Steven P., mother had bipolar disorder and was not taking her medication. Steven P. confirmed that mother would use a harness to restrain the boys. The social worker also discovered mother has resorted to locking Jacob in the closet.

Another social worker noticed that Jacob had bruising on his left eye, his buttocks, both knees, and his arms. After examining Jacob, Dr. Claire Sheridan also found bruises on Jacob’s buttocks, face, and legs. Some of the wounds were consistent with inflicted injury.

On April 18, 2006, DCS filed a juvenile dependency petition under section 300, subdivisions (b), (e), and (g). DCS included allegations regarding domestic violence, inadequate supervision, substance abuse, mental illness, and severe physical abuse.

At the jurisdictional hearing on June 26, 2006, mother submitted on the social worker’s report. The juvenile court found each of the allegations in the petition true. At the contested dispositional hearing, the court declared Jacob to be a dependent child of the court. The court also denied reunification services as to Jacob under section 361.5, subdivision (b)(5).

3. Jurisdictional Finding

Mother claims the juvenile court erred in finding true the allegation under section 300, subdivision (e), that mother had subjected Jacob to severe physical abuse.

Section 300 authorizes the juvenile court to adjudge a child a dependent child of the court under certain specified circumstances. Subdivision (e) provides one of those circumstances. Subdivision (e) states in part: “The child is under the age of five years and has suffered severe physical abuse by a parent, . . . For the purposes of this subdivision, ‘severe physical abuse’ means any of the following: any single act of abuse which causes physical trauma of sufficient severity that, if left untreated, would cause permanent physical disfigurement, permanent physical disability, or death; any single act of sexual abuse which causes significant bleeding, deep bruising, or significant external or internal swelling; or more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness; or the willful, prolonged failure to provide adequate food.”

In this case, mother submitted on the social worker’s report. (Cal. Rules of Court, rule 1449(e).) As noted by mother, however, her submission does not preclude her from challenging on appeal the sufficiency of the evidence to support the court’s findings. (See In re Tommy E. (1992) 7 Cal.App.4th 1234, 1237.) “Notwithstanding a submittal on a particular record, the court must nevertheless weigh evidence, make appropriate evidentiary findings and apply relevant law to determine whether the case has been proved. [Citation.] In other words, the parent acquiesces as to the state of the evidence yet preserves the right to challenge it as insufficient to support a particular legal conclusion. [Citation.]” (In re Richard K. (1994) 25 Cal.App.4th 580, 589, citing Tommy E., supra, at p. 1237.)

In reviewing the juvenile court’s jurisdictional finding, we apply the substantial evidence standard. (In re E.H. (2003) 108 Cal.App.4th 659, 669.) In applying the substantial evidence standard, we consider the record as a whole and determine whether it contains substantial evidence--i.e., evidence that is reasonable, credible, and of solid value--to support the court’s findings. (Ibid.)

In the dependency petition, DCS alleged that, “[w]hile under the care and custody of his mother, the child, [Jacob R.,] sustained bruising around his left eye, buttocks, and arms that would not ordinarily occur except as a result of unreasonable and/or neglectful acts or omissions.” We conclude that substantial evidence supported this allegation and the court’s finding under section 300, subdivision (e).

As stated above, “severe physical abuse” includes “more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness.” (§ 300, subd. (e).) In the absence of explicit medical testimony, the court may infer that a child’s bruises were deep where the injuries were visible several days after being inflicted. (See In re Joshua H. (1993) 13 Cal.App.4th 1718, 1928-1729.)

In this case, at the time of his removal, Jacob had various non-accidental injuries on his body, including bruising around his left eye. Jacob also complained to his foster mother that his knees and head hurt. Dr. Sheridan examined Jacob several days later. Although the exact date of this examination is unclear, the fact that the social worker reported the results of the examination in her jurisdictional report instead of her detention report, which was filed eight days after Jacob’s removal, suggests that the examination occurred several days after his removal. During this medical examination, Dr. Sheridan observed that Jacob still had bruises and marks on his face, a bruise on his head, and scattered bruises and marks on his buttocks and legs. Some of the marks and bruises looked suspicious and indicated inflicted injury.

There also was evidence in the record that mother had subjected Jacob to other physical abuse in the past. As required by the statute, this evidence indicated that it occurred more than once. Jacob’s grandmother informed the social worker that, about four months before Jacob’s removal, she had noticed that Jacob’s buttocks were “very bruised.” Mother admitted that Jacob was difficult to control and resorted to spanking him and restraining him with a harness. Jacob’s older step-sibling also explained that mother would lock Jacob in the closet. The social worker noticed that the red harness used to restrain Jacob was tied to the sofa. Based on this evidence, the trial court reasonably concluded that, on more than one occasion, mother either used excessive force in disciplining Jacob or she deliberately subjected Jacob to physical violence. Either way, the evidence supported the jurisdictional finding of severe physical abuse under section 300, subdivision (e).

4. Notice of the Dispositional Hearing

Mother claims that she received inadequate notice that she might be denied services under section 361.5, subdivision (b)(5), based on the allegation of severe physical abuse. She notes that, prior to the dispositional hearing, DCS did not rely on severe physical abuse as a basis for denying services. She argues that she should have been informed that DCS intended to proceed under section 361.5, subdivision (b)(5), in order to prepare and present a defense.

Although reunification is a high priority in the dependency system, the Legislature has recognized that, under certain circumstances, it would be fruitless to provide a parent with reunification services. (Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 163.) Section 361.5 lists the circumstances where reunification services need not be provided. “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.]” (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) As relevant here, the circumstances include where a parent has a mental disability (§ 361.5, subd. (b)(2)), there is a substantiated allegation of severe physical abuse (§ 361.5, subd. (b)(5)), the court previously has terminated reunification services (§ 361.5, subd. (b)(10)), and a parent has a chronic drug problem (§ 361.5, subd. (b)(13)).

In her detention report, the social worker recommended that the court deny reunification services to mother under section 361.5, subdivision (b). The social worker also recommended the denial of reunification services in her jurisdictional report. She specifically cited section 361.5, subdivision (b)(2) and (10). In an addendum report, the social worker again recommended that no services be provided to mother and cited section 361.5, subdivision (b)(10) and (13). At the pretrial settlement conference on June 23, 2006, the parties noted that one of the issues was whether services should be denied under section 361.5.

At the dispositional hearing on July 10, 2006, mother’s attorney objected to the application of section 361.5, subdivision (b)(5), as an alternative basis for denying reunification services. The court noted that DCS had informed mother of its intent to proceed under section 361.5 and that the court on its own initiative could rely on any applicable provision in that section in making its determination to deny services. The court rejected mother’s attorney’s argument and allowed DCS to present evidence to support the denial of services under subdivision (b)(5).

Section 361.5, subdivision (b)(5), specifically provides for the denial of reunification services when “the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent or guardian.” Section 361.5, subdivision (c), offers further guidance in applying this exception. That subdivision states, in part: “In addition, the court shall not order reunification in any situation described in paragraph (5) of subdivision (b) unless it finds that, based on competent testimony, those services are likely to prevent reabuse or continued neglect of the child or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent. The social worker shall investigate the circumstances leading to the removal of the child and advise the court whether there are circumstances that indicate that reunification is likely to be successful or unsuccessful and whether failure to order reunification is likely to be detrimental to the child.” (§ 361.5, subd. (c).) Under section 361.5, the court must deny reunification services where a child has been adjudged a dependent child under section 300, subdivision (e), unless the court makes findings as required under section 361.5, subdivision (c). Based on these provisions, in any case involving a substantiated allegation under section 300, subdivision (e), the parent may be denied reunification services under section 361.5, subdivision (b)(5).

The question is whether a parent is entitled to notice that she might be denied services under this specific paragraph of section 361.5, subdivision (b). “Notice is both a constitutional and statutory imperative. In juvenile dependency proceedings, due process requires parents be given notice that is reasonably calculated to advise them an action is pending and afford them an opportunity to defend. [Citation.]” (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114; see also In re Joshua M. (1998) 66 Cal.App.4th 458, 471.)

Section 361.5, subdivision (c) states, in a different part than quoted above: “In deciding whether to order reunification in any case in which this section applies, the court shall hold a dispositional hearing. The social worker shall prepare a report that discusses whether reunification services shall be provided. . . .” The statute does not specify whether the social worker must identify the exact paragraph in section 361.5, subdivision (b).

Courts have suggested that notice is adequate when it informs the parent that it is seeking the denial of reunification services under section 361.5. (See, e.g., In re S.G. (2003) 112 Cal.App.4th 1254, 1259; In re Joy M. (2002) 99 Cal.App.4th 11, 22, fn. 5; In re Jessica F. (1991) 229 Cal.App.3d 769, 782.) In Jessica F., this court specifically addressed an argument similar to the one raised here. In that case, the mother argued that DCS was required to include in the dependency petition a specific allegation that reunification services would be denied under section 361.5, subdivision (b)(4). We concluded that, “. . . section 361.5 only requires that mother be given notice in the social worker’s report that reunification services might be denied and, further, that mother be afforded an opportunity to be heard on that issue, both of which occurred in this case.” (Jessica F., supra, at p. 782.) In Jessica F., although we noted that the mother had received notice of the specific basis for the denial of services at the jurisdictional hearing, having notice of the specific statutory paragraph further established that mother had no legitimate reason to complain. (Ibid., fn. 15.) We were satisfied that the social worker’s reports referred to section 361.5, subdivision (b), without reference to any specific paragraph. (Jessica F., supra, at p. 782 & fn. 15.)

We again conclude that section 361.5 only requires that mother be given notice that reunification services might be denied. This is particularly true in this case where the basis for denying services is the same as the ground for finding jurisdiction under section 300, subdivision (e). Once the court makes this jurisdictional finding, the parent should anticipate that she may be denied services under section 361.5. Mother, therefore, cannot assert that she was surprised after having submitted to the social worker’s report, which alleged physical abuse, and after having acquiesced to the court’s jurisdictional finding under section 300, subdivision (e). While mother argues that, without specificity, she would be forced to prepare a response to all of the potential grounds for denying services under section 361.5, subdivision (b), this argument lacks merit. Even without notice of the specific paragraph, mother should have been able to narrow down the potential grounds for denying services based on the facts involved in this case.

Although the social worker offered alternative grounds for the denial of reunification services, without making specific reference to section 361.5, subdivision (b)(5), mother nevertheless had notice that DCS intended to seek the denial of services. While prior notice of the exact paragraph may have assisted mother in preparing for the dispositional hearing, we cannot say that mother was deprived of due process or denied of her rights under the statute. Both due process and the requirements of section 361.5 require only that mother be made aware that DCS intends to seek the denial of reunification services.

We conclude that mother received adequate notice.

5. Disposition

Mother’s petition is denied.

s/Gaut

J.

We concur:

s/McKinster

Acting P. J.

s/King

J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

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