In re A.M.
Filed 6/19/13 In re A.M. CA1/1
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opinion has not been certified for publication or ordered published for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
In re A.M.
et al., Persons Coming Under the Juvenile Court Law.
LAKE COUNTY DEPARTMENT OF SOCIAL
SERVICES,
Plaintiff and Appellant,
v.
K.B.,
Defendant and Respondent;
A.M. et
al.,
Appellants.
A136436
(Lake
County
Super. Ct.
Nos. JV320299A, JV320299B)
The
two children of respondent K.B. (Mother) and her boyfriend (Father) were
detained by appellant
Department of Social Services (Agency) after doctors found the younger child, a
baby, to have several bone fractures. At
a contested jurisdictional hearing, a physician testified that the baby’s
injuries had been inflicted by a series of violent acts. Although the parents were the baby’s only
caretakers, both of them professed bafflement as to the source of the
injuries. After finding the
jurisdictional allegations true, the juvenile court bypassed
under Welfare and Institutions Code
name="_ftnref1" title="">[1]
section 361.5, subdivision (b). A
few months later, Mother successfully sought modification of the order denying
services on evidence she had obtained a restraining order against Father and
attended parenting classes. Because the juvenile court applied the wrong
legal standard and failed to make necessary findings in granting reunification
services to Mother, we reverse.
I. BACKGROUND
Mother
and Father’s two children, S.M. and A.M., were the subjects of dependency
petitions under section 300, subdivisions (a) and (j), both filed July 1,
2011. S.M., an 11-week-old boy, was
detained on the allegation he was discovered, while in the care of Mother and
Father, to have “multiple unexplained injuries†that were “highly suspicious
non-accidental trauma.†A.M., a
four-year-old girl, was detained on the basis of the alleged abuse of S.M. In a subsequent report, the Agency stated
neither parent was able to provide a “feasible explanation†for the
injuries. The juvenile court detained
the children, and a contested jurisdictional hearing was scheduled. A few days later, the Agency filed an amended
petition with respect to S.M., adding allegations under section 300, subdivisions
(b) and (e) similar to the existing allegations.
At
the jurisdictional hearing, held six months after the children’s detention and
conducted over several days of testimony, S.M. was described by a pediatrician
as having suffered seven separate bone fractures prior to his detention, one to
each leg, an arm, and four ribs. Because
some of the fractures showed evidence of healing at the time of discovery, the
pediatrician concluded they were caused by two, three, or more separate
incidents. The most recent fracture, a
“complete break†of S.M.’s arm that left the bone in two pieces, occurred
several days before S.M. was brought by his parents to the hospital for
treatment. The injury would have been
painful for S.M. both when it occurred and whenever his arm was later moved,
since movement caused the broken ends of the fracture to “grind†against each
other. As the pediatrician said,
“Fractures are painful events and so clearly whoever was present at the time
the fracture happened would have recognized that the child was in distress.
. . . [A]nd by that, I mean crying and screaming and obviously being
in pain.â€
In
the six months after S.M. was detained, he had not suffered any further
injuries, which tended to rule out disease or other organic causes for the
fractures. Tests also ruled out such
problems. Rather, the pediatrician
concluded, the cause of the injuries “was a series of aggressive violent acts
directed towards the child. [¶] . . . [¶] . . . [V]ery,
very, very few two-month-old babies have any fractures. Children this age with this many fractures
are often dead because they’ve been injured so severely.â€
Mother
testified that she and Father lived together with S.M. and A.M. but were not
married. On the day of S.M.’s detention,
she and Father had taken him to the hospital because he was unable to move his
arm. Prior to that date, Mother had seen
no indication that S.M. had been “physically traumatized†or had any broken
bones. She said the handling and
treatment of S.M. by Father and A.M. had always been appropriate, and she and
Father had never left S.M. in the care of anyone else. Mother denied causing the injuries
herself. She was unable to explain
S.M.’s injuries, other than possibly as a result of a congenital condition that
she believed had affected her brother—mistakenly believed, the testimony
showed.
Father
had similarly never seen any sign of trauma in S.M., prior to discovering the
baby could not move his arm. Father
denied mistreating or mishandling S.M.
Father said he was a very strong person and engaged in physical play
with S.M., but nothing “unusual†had ever happened during their play. S.M. had never cried as a result of it. Father was hampered in his handling of S.M.
by a brace Father wore on his hand at the time, but he had never heard S.M. cry
out when he handled him. On the day they
took S.M. to the hospital, S.M. had caught his arm in Father’s brace, but S.M.
did not react as though he had been injured.
Father had never seen Mother hurt either A.M. or S.M. He had no explanation for the injuries.
Father
acknowledged having reported Mother to the police after she had repeatedly
attacked him several years before, but he denied any other violence toward him
by Mother. Father also acknowledged
reacting very violently at the courthouse on the day of the detention hearing
for S.M. and A.M.
The
commissioner found true the jurisdictional allegations against the parents,
noting the section 300, subdivision (b) allegations of abuse had been proved by
clear and convincing evidence.
In
the dispositional report, the Agency stated that Mother was found to have
committed battery while a juvenile, in addition to having been arrested for
spousal abuse. She reported that her own
father and mother, over the course of a custody dispute, were verbally and
physically abusive towards each other and towards her, and she had spent many
years in psychological treatment, although she claimed not to have been
diagnosed with a mental disorder. Father
reported no history of abuse or counseling. Both continued to deny any responsibility for
S.M.’s injuries. The Agency recommended
the juvenile court deny reunification services, explaining: “[B]ased on the parents’ failure to
acknowledge any responsibility for the abuse, there are no services that are
likely to prevent re-abuse.†Finding
clear and convincing evidence, the court adopted the recommendation of the
Agency to deny reunification services to both parents. The court scheduled a permanency planning
hearing pursuant to section 366.26.
In
the report prepared for the section 366.26 hearing, the Agency recommended
adoption by Father’s parents as the permanent plan. The report attached an adoption assessment
prepared by the Agency that expanded on the information previously available
about the family. Drawing on existing
Agency records, the assessment said Mother, as a child, “lived in chaotic homes
wherein domestic disputes and various forms of physical violence were common,â€
including possible sexual abuse of Mother.
Mother had a mutually violent relationship with her father and
stepmother, with whom she lived. The
incidents of violence “grew in frequency and intensity as [Mother] entered
puberty.†She finally moved from that
home at age 15 after “a physical altercation in which [Mother] injured her
step-mother.†Mother was hospitalized
for psychiatric treatment the following year “following an escalation of
physical altercations with her father.â€
She later returned to live in her father’s home, but she was arrested for
assault after another fight in which she injured him. She was then placed in a group home, where
her violent conduct appeared to subside.
The
adoption assessment described Father’s erratic conduct on the day of the
detention hearing, when he violently threatened various court and Agency
employees. At the time, Mother was heard
to say, “He is always like this.â€
Following the jurisdictional hearing, Father threatened suicide and was
hospitalized. He was later arrested for
threatening to kill Mother and others during a violent confrontation. In a letter sent to the Agency’s attorney,
Father stated he “wasn’t ready to be a dad†when S.M. was born and as a result
made a “mistake†in handling S.M. Father
said he “ha[d] some huge soul searching†to do before attempting to care for
children again. The assessment also
noted that A.M. had told caregivers Father “is mean and yells†and asked if
they “could talk to her parents about spanking because ‘they always spank me
and hurt me.’ â€
The
assessment contained a description of one visit between S.M. and his
parents. According to the notes of the
social worker, “[Father] removed the infant [S.M.] from the carrier seat and
hugged the infant tightly, approximately 30 sec, [S.M.] began to scream loudly;
[Father] bounced the infant harder and appeared to push the infant[’s] face
into his shoulder. The [visit
supervisor] offered to take [S.M.] after watching the father struggle for about
10 MIN. [Mother] had made many attempts
to ask for the crying baby and [Father] refused. . . . [Father]
placed the infant on a bean bag and directed [Mother] to let the baby stay on
the bag. [Father] left the room, and the
[visit supervisor] watched [Mother].
[S.M.] stopped crying. After a
few minutes [Mother] talked and played with the child but the [visit
supervisor] noticed [Mother] did not pick up the child but she would grab the
bean bag instead. Soon [Mother] pick[ed]
up [S.M.] but just to reposition the child on the bean bag.†When Father returned to the room, he picked
up S.M., who immediately began to cry.
When Father’s mother took S.M. and comforted him, “[Father] turned red
and refused to speak.†Father’s parents
told the Agency, “the birth parents have an established history of volatile
interactions with one another that is not healthy for the children to be around
and that potentially puts the children at risk of further harm.†The assessment concluded the parents “do not
demonstrate the self-control and/or personal stability needed to sustain safe,
effective and nurturing interactions in a larger context.â€
On
the eve of the section 366.26 hearing, less than three months after the
jurisdictional ruling, Mother filed a motion pursuant to section 388 for an
order modifying the dispositional order to grant her reunification
services. The motion was accompanied by
a declaration stating that, since the dispositional hearing, Mother had
separated from Father and obtained a domestic violence restraining order
against him. She had also “sought
therapeutic services . . . in an effort to better understand the
ill-effects of my relationship with [Father] as well as made an attempt to
better understand myself,†consisting of five “Seeking Safety†classes, five of
eight parenting classes, and two sessions with a counselor. According to her declaration, Mother was
still at a loss to explain what happened to S.M., although she noted Father
“admitted he was alone with [S.M.] when one of his injuries occurred.â€
Mother
testified at the hearing on her motion, held August 13, 2012, confirming the
information contained in the declaration.
Mother said she believed no longer being in a relationship with Father
was “better for the children.†When
asked to explain, she said, “I believe that I can be a mom or a better mom
just—it’s hard to answer. . . . I think I can support my kids and
everything on my own, and I don’t think—I think that I can do it on my
own.†Mother continued to profess
ignorance about the source of S.M.’s injuries and said she “would never believe
that†Father harmed S.M. She
acknowledged obtaining the domestic violence restraining order, but she said
the “issues†of Father that motivated the restraining order arose after the
Agency’s detention of the children and as a result of the stress caused by
it. Mother further contended that, but
for the Agency’s intervention, Father would have presented no risk to the
children, saying, “[I]f the kids weren’t taken away in the first place, we
would not be having the problems we have now.
So honestly, if [the Agency] never got involved, no, I do not [have
concerns about Father’s treatment of the children].â€
When
Mother was asked what she would do differently in the future to protect the
children, she described the lessons learned in the classes she was taking,
“what to look for if my children are ever being harmed and how to prevent it
and what the steps are to prevent any kind of injuries happening on my children
ever again.†She also said she now had a
bigger “safety net†of resources in the event she suspected abuse.
The
juvenile court granted reunification services, explaining, “The change in
circumstances that I see is that the mother has obtained the restraining
order. She appears to me to be making
good progress in taking classes to better herself and become a responsible
parent. And I think that at this stage
of the proceedings reunification services for the mother are something that
would very likely result in reunification.â€
DISCUSSION
Both
the Agency and the children’s attorney have appealed the grant of reunification
services to Mother, contending the juvenile court’s finding of changed
circumstances was not supported by substantial evidence and the grant of
services was based on an incorrect legal standard.
The
child dependency laws are “designed to allow retention of parental rights to
the greatest degree consistent with the child’s safety and welfare, and to
return full custody and control to the parents or guardians if, and as soon as,
the circumstances warrant.†(
625.) To that end, “the general rule is
that when a dependent child is removed from the parent’s or guardian’s physical
custody, child welfare services, including family reunification services, must
be offered.†(Id. at p. 626; § 361.5, subd. (a).)
Notwithstanding
this general rule, section 361.5, subdivision (b) lists a series of
circumstances under which reunification services “need not†be provided to
parents, referred to as a “bypass†of services.
These comparatively extreme situations “ ‘reflect[] the
Legislature’s desire to provide services to parents only where those services
will facilitate the return of children to parental custody.’ [Citations.]
When the court determines a bypass provision applies, the general rule
favoring reunification is replaced with a legislative presumption that
reunification services would be ‘ “an unwise use of governmental
resources.†’ †(
1106, 1112.)
In
initially bypassing reunification services to Mother, the juvenile court relied
on two section 361.5, subdivision (b) provisions. The first provision invoked by the court,
subdivision (b)(5), applicable to S.M., allows the juvenile court to deny
services if it finds “[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 or guardian.†In turn, section
300, subdivision (e) grants jurisdiction when “[t]he child 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.â€
Pursuant to section 361.5, subdivision (c), if a juvenile court finds
the subdivision (b)(5) circumstances to be supported by clear and
convincing evidence, the juvenile court is prohibited
from granting reunification services “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.)
The
second provision invoked by the juvenile court in denying reunification
services to the parents, applicable to A.M., is section 361.5, subdivision
(b)(6), which allows a court to deny reunification services upon finding
“[t]hat the child has been adjudicated a dependent pursuant to any subdivision
of Section 300 as a result of severe sexual abuse or the infliction of severe
physical harm to the child, a sibling, or a half sibling by a parent or
guardian, . . . and the court makes a factual finding that it would
not benefit the child to pursue reunification services with the offending parent
or guardian.†Reunification services
cannot be afforded to a parent who falls under subdivision (b)(6) “unless the
court finds, by clear and convincing evidence, that reunification is in the
best interest of the child.â€
(§ 361.5, subd. (c), 2d par.)
In making this “best interests†determination, the juvenile court “shall consider any information it
deems relevant, including . . . [¶] (1) [t]he specific act or
omission comprising the severe sexual abuse or the severe physical harm
inflicted on the child or the child’s sibling or half sibling; [¶]
(2) [t]he circumstances under which the abuse or harm was inflicted on the
child or the child’s sibling or half sibling; [¶] (3) [t]he severity of the
emotional trauma suffered by the child or the child’s sibling or half sibling;
[¶] (4) [a]ny history of abuse of other children by the offending parent or
guardian; [¶] (5) [t]he likelihood that the child may be safely returned to the
care of the offending parent or guardian within 12 months with no continuing supervision;
[and] [¶] (6) [w]hether or not the child desires to be reunified with the
offending parent or guardian.†(
juvenile court lacks the authority to order reunification unless
it expressly makes [the best interests] finding by the requisite standard
of proof.†(Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 107 (
Although
Mother sought reunification services by moving under section 388 for
modification of the juvenile court’s prior order, rather than directly under
section 361.5, subdivision (a) at the time of the dispositional hearing, that
did not excuse the court from following the requirements of section 361.5,
subdivision (c) in granting reunification services to parents found subject to
subdivisions (b)(5) and (6).
Nothing in the language of subdivision (c) suggests the requirements
need not be observed if services are requested at some time after the
dispositional hearing has occurred. On
the contrary, the language is absolute.
court to modify a prior order. It does
not purport to excuse the juvenile court from satisfying any other legal
requirements that might apply to the modification. Put another way, Mother could not evade the
requirements of section 361.5, subdivision (c) merely by waiting a few
months and then seeking relief under section 388. Mother does not contend otherwise; in
supplemental briefing, her counsel agreed the trial court was required to make
the necessary findings under section 361.5, subdivision (c) prior to granting
services.
As
the minors’ counsel points out, section 388 was amended in 2012 to make
explicit the need for these section 361.5, subdivision (c) findings when
services are sought by way of a petition under section 388. Our conclusion is based on the language of
section 361.5, subdivision (c), rather than on this amendment, which did not
become effective until after the events in question. Our conclusion, however, is consistent with
the Legislature’s expressed view that the amendment was declarative of existing
law.
The
juvenile court failed to observe the restrictions of section 361.5,
subdivision (c) in granting reunification services to Mother. As noted above, the court was prohibited by
subdivision (c) from granting services with respect to S.M., who was detained
under section 300, subdivision (e), unless it found, “based on competent
testimony, those services are likely to prevent reabuse . . . 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.) No third party evidence was provided to the
court concerning the nature of the services to be provided to Mother, much less
demonstrating they were likely to prevent reabuse. Nor was there any evidence of a close and
positive attachment with S.M., who was removed from Mother before he was three
months old. Further, the juvenile court
did not make, or even mention, the required finding.
Similarly,
the juvenile court could not grant reunification services with respect to A.M.
unless it made an express finding on clear and convincing evidence that
reunification was in A.M.’s best interests, taking into consideration the various
factors listed in section 361.5, subdivision (i). Although the juvenile court found changed
circumstances, it made no express finding of best interests under any
evidentiary standard, beyond noting, “at this stage of the proceedings
reunification services for the mother are something that would very likely
result in reunification.†Further, there
is no indication the juvenile court considered the factors of subdivision (i).
While
acknowledging the need for findings under section 361.5, subdivision (c),
Mother argues “any findings the juvenile court may have failed to make can be
implied.†On the contrary, under
required to make the necessary findings expressly. (Nickolas
F., supra, 144 Cal.App.4th at p. 107.)
As noted above, no express findings were made.
Mother
also argues the juvenile court effectively made the necessary findings under
section 361.5, subdivision (c) because “there is essentially no difference
between a best interests determination pursuant to section 388 and a best
interests determination pursuant to section 361.5, subdivisions (c) [
We cannot agree. Regarding A.M.,
as to whom services were denied under section 361.5, subdivision (b)(6), the
relevant subdivision (c) findings were required to be made under a clear and
convincing evidence standard. Section
388 requires only a preponderance of the evidence. (In re
Stephanie M. (1994) 7 Cal.4th 295, 317.) Even if the substance of the findings was the
same, the evidentiary standard was quite different. Further, in making a best interests
determination after a finding under section 361.5, subdivision (b)(6), the
juvenile court is directed by subdivision (i) to consider a specific series of
factors that are not necessarily applicable to an ordinary section 388
determination. Regarding S.M., as to
whom services were denied under section 361.5, subdivision (b)(5), the juvenile
court was required to make the specific finding that “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.â€
(§ 361.5, subd. (c), 3d par.)
Neither of these is necessarily required for a best interests finding
under section 388, and, as noted above, the juvenile court made neither
finding.
Even
if the necessary findings had been made, we would not have found substantial
evidence to support them. With respect
to S.M., as noted, there was no testimony to suggest that services would
prevent Mother either from once again inflicting abuse, if she was the source
of S.M.’s injuries, or permitting a domestic partner to do so. As the Agency noted in its dispositional
report, there are no services that will prevent reabuse by a parent who refuses
to acknowledge the abuse in the first place.
Despite overwhelming evidence that S.M. had been brutally treated on
more than one occasion and that either she or Father had inflicted the injuries,
Mother was unwilling to acknowledge any source for S.M.’s injuries. Since Mother knows which of the two of them
must have inflicted the injuries, her refusal amounts to a willful denial of
the injuries themselves. In those
circumstances, there is no reason to believe further services will prevent her
from inflicting or ignoring the infliction of similar injuries in the
future. For the same reason, there is no
evidentiary basis for finding by clear and convincing evidence that
reunification with Mother would be in the best interests of A.M. (See In
re William B. (2008) 163 Cal.App.4th 1220, 1229 [finding no substantial
evidence to support a “best interests†finding in similar circumstances];
132 Cal.App.4th 1339, 1348–1349 [same].)
Following
oral argument, Mother filed a motion to dismiss supported by a request for
judicial notice, arguing subsequent events had rendered the present appeal
moot. We grant the request and take
judicial notice of the April 12, 2013 status review report and the May 6, 2013
hearing transcript and minute order.
Together, these documents demonstrate the Agency recommended, and the
trial court granted, a further six months of reunification services to Mother
following expiration of the period of services challenged in this appeal.
Although
we have taken judicial notice of the requested documents, we find no merit in
Mother’s claim that the events reflected in them justify dismissal. For the reasons discussed above, the juvenile
court could not lawfully grant reunification services to Mother without making
the findings required by section 361.5, subdivision (c) on the basis of an
adequate factual record. Neither the
motion to dismiss nor the documents of which we have taken judicial notice
suggest, in connection with the most recent grant of reunification services,
that an evidentiary record was created to support the required findings or the
juvenile court even purported to make them.
that a valid grant of reunification services has occurred. As for Mother’s claim the Agency changed its
position in recommending further services, the Agency’s counsel made clear
during the hearing before the juvenile court that the Agency continued to
assert the validity of the position taken on this appeal. The recommendation of further services was an
accommodation of the practical exigencies of the proceedings, rather than a
legal concession.
Although
the expiration of the period of reunification services directly challenged in
this appeal may have rendered it technically moot, we exercise our discretion
to rule on the appeal as one presenting “ ‘important question[s] affecting the
public interest’ that are ‘ “ ‘ “capable of repetition, yet evading
review.†’ †’ †(
1240, fn. 1.)
DISPOSITION
The
August 13, 2012 order of the juvenile court granting reunification services to
Mother is reversed. The case is remanded
to the juvenile court with directions to enter a new order setting a permanency
planning hearing under section 366.26 as soon as practicable.
_________________________
Margulies,
Acting P.J.
We concur:
_________________________
Dondero, J.
_________________________
Banke, J.
name="_ftn1" title="">[1]
All statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2]
Section 361.5, subdivision (c), second paragraph, states: “The court shall not order reunification†for
a child subject to subdivision (b)(6) “unless the court†makes the required
findings. Similarly, it states: “[T]he court shall not order reunification in
any situation described in paragraph (5) of subdivision (b) unless it finds
. . . .†(§ 361.5, subd.
(c), 3d par.)
