E.S. v. Superior Court

Filed 6/26/07 E.S. v. Superior Court CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Proceedings for extraordinary relief after reference to a Welfare and Institutions Code section 366.26 hearing. Gary M. Bubis, Juvenile Court Referee. Petition denied.

E. S. seeks review of a juvenile court order sustaining a Welfare and Institutions Code section 387 petition, which sought removal of her son, M., from her care. (All statutory references are to the Welfare and Institutions Code.) She contends the order was not supported by sufficient evidence and the circumstances listed in the petition did not support removal. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

On June 11, 2003, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of seven-year-old M. under section 300, subdivisions (a) and (b), alleging he had been physically abused by his father, Aaron S., and he and his four siblings had been exposed to domestic violence between E. and Aaron. The children were detained with family friends, and the court ordered a restraining order against Aaron, who was briefly hospitalized in a psychiatric unit. On July 3 the court found the allegations true and placed the children in out-of-home care.

In December 2003 E. had her sixth baby. The baby remained in E.'s care with voluntary services. M. attended therapy, but was reluctant to discuss abuse or domestic violence. At the six-month review hearing, the court continued services.

By July 2004 M.'s therapist reported M. was making progress, but showed resistance, negativism, low self-esteem, irritability, depression, anxious moods, poor boundaries with peers, poor impulse control, and self-blame. The psychologist who performed an evaluation reported M. has dysthymic disorder and mild oppositional defiant disorder, and there was sexual acting out among the siblings because of poor personal boundaries established by the parents. E.'s therapist reported E. was able to verbalize her role in the domestic violence and her failure to protect the children, but had difficulty putting her knowledge into practice. E. and the children were having weekend overnight visits. In August the court granted the children's section 388 petition, requiring visits be supervised because the children were acting out sexually and E. used ear cleaning as punishment. The caregivers for some of the children reported M. and the other boys engaged in sexual activity. The oldest child said the boys sucked each others penises, and when E. saw this, she told them to stop. The child also described the children kissing each other's tongues and said all of the children had seen E. masturbating through an open bedroom door and the parents talked about sex in front of the children.

On October 25, 2004, M. began a trial visit with E. He was then placed with her, but there were reports of serious issues of sexual behavior among the children and concern regarding E.'s ability to protect them. M. was participating in the STEPS treatment program, which is designed for children who act out sexually. He had 20 hours of treatment each week. The court continued his placement with E. with continued services.

In October 2006 the social worker reported E. had asked to home school M. once he completed the STEPS program. M. opposed this plan, saying she had done a poor job home schooling him in the past and he wanted to make friends at school. His therapist recommended he attend school. M. said E. was crazy, grabbed his face and neck very hard and yelled at him. Also, he reported seeing her sitting naked at the family computer at night and said she had him change his younger sister's clothing, a practice that made him uncomfortable and his therapist believed was risky for him. Further, one night E. had left M. and his sister at home alone when she went to the hospital with a torn ligament. In addition, E. missed several conjoint therapy sessions that had been scheduled for her and M.

On October 19, 2006, the social worker petitioned under section 387, alleging E. used inappropriate discipline, showed poor boundaries and was not attending family therapy at the STEPS program, and her behavior was interfering with M.'s special needs. The social worker reported there were ongoing concerns about E.'s judgment, insight and ability to protect M. M.'s therapist reported M. did not feel safe in E.'s home and wanted to go to foster care. M. said E. was getting physical with him and told him not to tell. The court detained M. out of the family home and ordered supervised visits.

The social worker subsequently reported M. was doing well in foster care and had given himself a new name, saying he wanted a fresh start. He said he enjoyed visits with E., but was unsure whether he wanted to live with her.

At a hearing on February 7, 2007, the social worker testified she had been working with the family for more than three years. She recommended setting a section 366.26 hearing and that M. be assessed for adoption because, although he was older, he had attractive qualities. She said M. had been placed with E. when there were problems in his former foster home.

E. admitted grabbing M.'s face, but said she had done so when he would not look at her and she had not grabbed him very hard. She denied ever being naked where M. could see her, but said she might have been in her underwear. She said M. had asked to help out by changing his sister's clothing when they were running late. She testified about difficulties with attending therapy.

The court found the allegations of the petition to be true. It noted the history of the case and that M. needed full time care with a responsible adult, yet E. had placed him in a situation of risk with his sister. It removed him from E.'s care. Then, after a five-week continuance, it set a section 366.26 hearing.

DISCUSSION

E. contends the court erred in finding the allegations of the petition true. She argues the findings were not supported by substantial evidence and the circumstances listed in the petition did not support removing M. from her care.

A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) Determinations of credibility of witnesses and resolutions of conflicts in the evidence are for the trier of fact. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1226-1227.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.3d 337, 340.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Substantial evidence supports the findings the allegations were true and removal was required. The allegations of the petition might have been insufficient to support removal absent the particular history of this case. However, because of M.'s special needs, the court was justified in finding he was not safe in E.'s custody.

M. was first removed because of domestic violence and Aaron's abuse. As the dependencies continued, it was revealed that the siblings were sexually acting out. M. received treatment for this problem for many months and had recently graduated from the STEPS treatment program. E. had had services concerning the siblings' incest for more than three years and had indicated she understood the importance of personal boundaries and that the boys and girls in the family were not to be alone together or to enter each others' rooms, yet she had M. change his younger sister's clothing and allowed the young child to run around naked even though M. said it made him feel uncomfortable. Contrary to E.'s argument in her writ petition, M.'s therapist did not sanction having M. change his sister's clothing. Instead, the therapist opined M. was no longer likely to initiate incestuous behavior, but he could be suggestible. The therapist expressed concern about E.'s judgment in putting M. into this situation. In addition, E. had left M. alone with his young sister at night when E. left to go to the hospital, even though she had acknowledged the children should not be left alone together.

Also, M. had reported getting up at night and seeing E. sitting naked at the family's computer. E.'s explanation that she was probably wearing her underwear and perhaps a sheer robe is troubling under the circumstances of this case. The children had a history of sexually acting out. Despite this, and despite knowing that M. often got up at night to get a drink of water or use the bathroom, E. sat unclothed where he could see her. Further, M.'s therapist expressed concern that during the last months of M.'s participation in the STEPS treatment program, E. had missed several scheduled family therapy sessions. The therapist wrote, "missing these sessions has impeded the family's progress in therapy as sessions have been once a month, inconsistent, and infrequent." Because M. had special needs and had spent many months in a treatment program to help him learn about having personal boundaries and to help him stop his inappropriate sexual behavior, and E. had had years of services that included teaching her how to deal with children who sexually act out, the court was entitled to find E. had not learned how to be an appropriate parent to M. and he would be at risk if he continued in her care.

The court also considered M.'s reports that E. had been "getting physical" with him, grabbing his face and his neck and yelling at him. An isolated instance of this behavior would not be sufficient to support removing a child from a parent's custody. But in M.'s case it was concerning. One reason for M.'s initial removal was Aaron's physical abuse. His sensitively to being grabbed was understandable and was another factor supporting removal.

Under the totality of the circumstances, M.'s particular issues and special needs and the family's long history in the dependency system, substantial evidence supported the court's finding that after more than three years of services E. had not shown she understood how to be a safe parent to M. and that he was not safe in her care. Substantial evidence supports the removal order.

DISPOSITION

The order is affirmed.

McINTYRE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

NARES, J.

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