Edward R. v. Superior Court

Filed 10/16/07 Edward R. v. Superior Court CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Edward R. (Father) seeks an extraordinary writ to set aside an order of the Solano County Superior Court, Juvenile Division, which denied him reunification services and set a hearing under Welfare and Institutions Code section 366.26[1] to select permanent plans for Robert R. (born Dec. 2006). As discussed below, we find no prejudicial error and deny his petition on the merits.[2]

Background

On April 2, 2007, Holly E. (Mother) brought Robert to the emergency room at Sutter Davis Hospital. Robert was experiencing such severe seizures that it was necessary to place him in a medically induced coma and transport him by helicopter to the pediatric intensive care unit at Sutter Memorial Hospital in Sacramento. There hospital staff made a referral to the Solano County Health and Social Services Department (Department) after noting that Robert had injuries indicative of severe physical abuse. On April 5, the Department submitted a section 300 petition to the juvenile court, and that court ordered Roberts out-of-home detention. Subsequently, when the hospital released Robert, the Department placed him in the care of his maternal grandparents.

At the conclusion of the contested jurisdictional hearing on July 5, 2007, the juvenile court amended, then sustained, a number of the petitions allegations. Specifically, the court found that Robert had sustained serious injuries while in his parents care, including bruises consistent with being hit or slapped but not consistent with accidental injury. He had suffered sheer injury changes on the sides of his skull, subdural hematomas, both old and new, and retinal hemorrhaginginjuries consistent with Shaken Baby Syndrome (SBS). Robert had additionally suffered second-degree burns spreading from his lower back and buttocks toward his genitals. ( 300, subds. (a), (e).) The court found further that both parents had failed to seek medical assistance for Roberts burn injuries, and that both had delayed seeking medical assistance when Robert exhibited bouts of unconsciousness and behaviors consistent with seizures. ( 300, subd. (b).)

The court concluded the contested dispositional hearing one month later, on August 6, 2007. At that time it denied reunification services for both Father and Mother, pursuant to section 361.5, subdivisions (b)(5) and (b)(6), and set the matter for hearing under section 366.26. This petition followed. ( 366.26, subd. (l); rule 8.450.)

Discussion

Reunification services need not be provided to a parent . . . when the court finds, by clear and convincing evidence . . . [] [t]hat the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent . . . . ( 361.5, subd. (b)(5).) A child is within the jurisdiction of the court pursuant to subdivision (e) of section 300 when he or she is under the age of five years and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child. When the juvenile court makes a finding pursuant to section 361.5, subdivision (b)(5), it shall not order reunification [as to an offending parent] . . . 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. ( 361.5, subd. (c), 3d par.) To assist the court with this determination, 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. (Ibid.)

Father argues essentially that the Department failed to comply with its investigatory duty to advise the juvenile court, both with respect to the likelihood of successful reunification if the court did order services for Father, and also with respect to the likelihood of detriment to Robert if the court did not. The result of this failure, in Fathers view, is that the courts denial of services pursuant to section 361.5, subdivision (b)(5), is not supported by sufficient evidence. In making this argument, Father relies primarily on the decision in In re Rebekah R. (1994) 27 Cal.App.4th 1638 (Rebekah R.).

Initially we note that Father does not expressly challenge the juvenile courts earlier jurisdictional findings. One of these established jurisdiction under section 300, subdivision (e). It found that the infant Robert had suffered severe physical injury due to Fathers conduct, in effect because Father either inflicted the minors injuries or reasonably should have known that another person was abusing the minor. The existence of this finding was a proper basis for the court to refuse to extend reunification services to Father pursuant to the section 361.5, subdivision (b)(5). (See Rebekah R., supra, 27 Cal.App.4th 1638, 1652; see also Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 849.)

We also observe that Father is not claiming that Robert has a close and positive attachment such that it would be detrimental to him to deny Father services. Indeed, Roberts extremely young age at the time of his detention appears to preclude such a contention. (See Rebekah R., supra, 27 Cal.App.4th 1638, 1653.)

It is true the case worker admitted that her dispositional report had not directly addressed the issue whether Father was likely to succeed with reunification if the juvenile court ordered services for him. But Father made no objection below that the report was for this reason inadequate. Instead, his appointed counsel called the case worker as a witness and cross-examined her on Fathers prospects for reunification. In doing so he effectively forfeited any claim that the case workers failure to comply with section 361.5, subdivision (c), in itself supports or requires our reversal of the lower courts denial of services under section 361.5, subdivision (b)(5). (See, e.g., In re Aaron B. (1996) 46 Cal.App.4th 843, 846.)

Thus we focus entirely on whether there is substantial evidence to support the juvenile courts implied finding that court-ordered services for Father were not likely to prevent his reabuse or continued neglect of Robert. (See Rebekah R., supra, 27 Cal.App.4th 1638, 1652.) In doing so we consider the evidence in the light most favorable to the courts determination, drawing all reasonable inferences and resolving all conflicts in its favor. (In re Angelique C. (2003) 113 Cal.App.4th 509, 519.)

The following facts were among those submitted to the juvenile court at the dispositional hearing. Father was currently on probation for a DUI offense and had not completed certain classes required by its terms. He had attended two substance abuse treatment programs within the preceding three yearsattendance that was similarly required due to two prior DUI arrests. Mother, in a letter that the maternal grandmother submitted to the case worker, claimed Father was abusive to her in the home and became angry when Robert cried such that she feared for Roberts life if left with [Father]. Father reported to the case worker that he had suffered physical abuse from his mother, that he had had a problem with alcohol, that he had brain damage and long- and short-term memory problems due to a concussion he had suffered in a construction accident, and that he had become unemployed in May 2007.

Father told the case worker he should not discuss the case because of his possible testimony in a criminal proceeding that was pending against Mother. According to the case worker, such lack of cooperation absolutely made it difficult to develop and provide services appropriately designed to alleviate the risk of further abuse.

Father told police that he had decided not to take Robert to a doctor or hospital for treatment of his burns, because he thought the burns were getting better. In contrast, the case worker reported prior testimony from a pediatrician, which stated that a parent would most appropriately respond to such burns by seeking immediate medical attention for the minor. Father similarly told police that, on the day Mother took Robert to the hospital, he had observed Robert to be twitching and more quiet than usual, but did not think these behaviors were that bad. He reported to the case worker that he had never himself taken Robert to medical appointments, as he had been working a night shift and slept during the day. In the case workers opinion, Father demonstrated a lack of parenting skills. She admitted Father had behaved appropriately during visits but emphasized that this demonstrated only an ability to parent Robert during weekly one-hour supervised visits.

With regard to Robert, the case worker reported that, due to his SBS, the child was at risk for later diagnoses of conditions that might require lifelong special care, such as cerebral palsy, hydrocephalus, and mental retardation. During his hospitalization, Robert was authorized to receive special needs services. He was placed in the care of the maternal grandparents only after they had received training in his special needs, such as monitoring his medication and the seizures he continued to suffer.

The case worker expressed the opinion that Robert presently could not be safely returned to either parent. Father currently posed a risk of continuing severe abuse, in light of his ongoing alcohol abuse, his family history of being abused as a child, his own domestic abuse as reported by Mother, and his self-reported brain damage and memory impairment. She considered these to be high risk factors, especially when combined with Fathers lack of parenting skills and Roberts extreme special needs. While these factors could be addressed through services, the case worker testified that, due to their high risk nature, Father could not hope to address them successfully without engaging in intensive services for six months or longer.

We have found nothing in the record to show that Father was committed to an intensive level of reunification efforts. On the other hand, he has been compelled to participate repeatedly in alcohol abuse programs in the recent past. It is reasonable to infer that Father, if offered services, would not likely succeed in eliminating this particular risk factor, if not others.

In our view the foregoing evidence significantly distinguishes this proceeding from the case on which Father relies by analogy. In Rebekah R., supra, the juvenile court expressly found that the father had not inflicted the minors injuries, and the nature of the injuries were such as to minimize the fathers negligence and culpabilityeven doctors and nurses who had previously treated the minor had not detected the abuse of which the father claimed to have no knowledge. There was no evidence, as here, of alcohol abuse, domestic violence, or other risk factors that needed to be addressed through reunification services, beyond the fathers relatively minor deficiency in awareness. Finally, the father in Rebekah R. submitted evidence that is lacking here: he testified that he was committed to leaving the mother if necessary to reunify with the minor, and he submitted a psychological report that noted the father had no acute psychological problem that could not be addressed through reunification services. (See Rebekah R., supra, 27 Cal.App.4th 1638, 16431645, 1653, fn. 10.)

We are persuaded that the evidence summarized above provides substantial support for the juvenile courts implied finding, that services for Father were not likely to prevent reabuse or continued neglect of the child, within the meaning of section 361.5, subdivision (c). Accordingly we conclude the court did not abuse its discretion in denying reunification services to Father pursuant to section 361.5, subdivision (b)(5).

Given this conclusion, we deem it unnecessary to address Fathers remaining contentionthat the juvenile court erred in denying reunification services pursuant to section 361.5, subdivision (b)(6). Even if we assume such error, it was necessarily harmless due to the alternate basis for denial. (See Patricia O. v. Superior Court (1999) 69 Cal.App.4th 933, 943.)

Disposition

The petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI,  14; Kowisv. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd.v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court immediately. (Rule 8.264(b)(3).)

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[1] Further statutory references are to the Welfare and Institutions Code. References to rules are to the California Rules of Court.

[2] Section 366.26, subdivision (l)(1)(A), bars review on appeal if the aggrieved party has not made a timely writ challenge to an order setting a hearing for selection and implementation of a permanent plan. The statute also encourages the appellate court to determine all such writ petitions on their merits, as we do here. ( 366.26, subd. (l)(4)(B).)