In re Hugo A.

Filed 1/30/07 In re Hugo A. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

PETITION for Extraordinary Writ. Petition denied.

Helen Yee for Petitioner.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel and O. Raquel Ramirez, Deputy County Counsel for Real Party in Interest.

Estaire Press for Hugo A., Minor.

INTRODUCTION

Petitioner, Ana E., mother of three-year old Jorge A. and five-year-old Hugo A. brings the instant petition for extraordinary writ review (Cal. Rules of Court, rule 38 et seq.) challenging the disposition order of the juvenile court that denied her reunification services and visitation. We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

1. Jorge sustains second and third degree burns over 25 percent of his body.

On March 15, 2006, the Department of Children and Family Services (the Department) received a child abuse hotline referral alleging that two-and-a-half year‑old Jorge was the victim of physical abuse. Jorges parents had taken him to El Monte Hospital because he was suffering from second and third degree burns over his trunk, genitals, thighs, and back. The child was later moved to Los Angeles County/University of Southern California (LAC/USC) Hospital, which made the hotline referral.

Initially, the Departments emergency social workers believed the parents that Jorges injuries were accidental. The parents gave a very detailed account of the events leading to the childs injuries. Mother explained that she had put a pot of water to boil some beans and then undressed Jorge in preparation for his bath. She heard a loud cry and saw that Jorge had pulled the pot off the stove. However, the child abuse reporter noted that Jorge had told at least two nurses that his father did it, and his brother Hugo stated that the injuries were inflicted in the bathroom.

After a new social worker was assigned to the case, she received a police report from El Monte Police Detective Walterscheid and photos of Jorges injuries. The detective had spoken with a physician at the LAC/USC Hospital Burn Center. In a great deal of pain, Jorge would require surgery and thereafter, his bandages would have to be replaced regularly with fresh dressings, causing additional, extreme pain. Finding three-year‑old Jorges statements to be limited and inconclusive, Detective Walterscheid forwarded photographs of Jorges injuries to Dr. Imagawa at Childrens Hospital of Los Angeles. Dr. Imagawa concluded that Jorges burns were deliberate and that someone had immersed the child in hot water or poured scalding water on him. Detective Walterscheid also reported that the parents had admitted to the police that the bean-pot story was fabricated. Father subsequently  failed miserably  on a lie detector test. Dr. Janice Woods at the Violence Intervention Program determined that the parents stories of the events were inconsistent with the pattern of injuries Jorge suffered. For example, had Jorge in fact pulled a pot of hot water onto his chest, he would not have suffered burns on his back. It appeared to Dr. Woods that someone poured hot liquid on the front and back of Jorges body. Burn Center specialist at LAC/USC Hospital also determined that Jorges injures were not consistent with the parents explanations.

Additional facts also caused the Department suspicion. The parents took 45 minutes to transport the child to El Monte Hospital, located five minutes away from their house. Mother insisted that she and father visited Jorge in the hospital every day. Nurse Blanca stated that mother did not visit Jorge as often as other mothers did. Notes from the hospital social worker, Sharon Flowers, indicated mother visited only every few days.

Jorges extensive hospital records show that Jorge required multiple skin grafts and surgeries to remove his burnt skin, transfusions, and the removal of dressings that was so painful that he required anesthesia. The hospital discharged Jorge on April 13, 2006, and told mother to bring him back to the outpatient burn clinic in one week. Mother failed to appear with Jorge, and her explanation was not credible to the social worker. She then failed to bring the child to a walk-in appointment at the clinic in May. Mother threw away the list of services that the social worker had provided her.

The Department detained Jorge and his brother Hugo on June 6, 2006. When the social worker explained to Hugo that she would be taking him to a foster home, Hugo responded by repeating several times during the car ride,  You are taking me to a home where they wont hit me.  Hugo later revealed to the social worker that his parents hit him with a belt every day. He also demonstrated how his father had once grabbed him by the neck and pulled his ear. Hugo confirmed that the parents also hit Jorge and that father hits mother.

The Department filed a petition alleging that father physically abused Jorge by pouring hot water on his body and that mother knew, or reasonably should have known of the physical abuse but failed to take action to protect the child. The injuries were consistent with nonaccidental trauma. The petition went on to allege that mother and father physically abused the children on numerous prior occasions and that the other parent knew or reasonably should have known of this abuse but failed to protect the children. Finally, the petition alleged that the parents had a history of engaging in violent altercations with each other in front of Hugo. The court ordered the children detained and allowed the parents to have monitored visits no less often than twice a week.

When confronted with contradicting medical evidence, the parents abandoned their first account and presented a drastically different story. In June 2006, mother admitted that she had initially lied about how Jorge sustained his injures. Mother was ambivalent. She was not sure whether to remain married to father. She admitted that she might hit the children on the hand. However, she denied the domestic violence allegations, explaining that father was hardly ever home. The detective told the social worker that when he confronted the parents about the implausibility of their original bean-pot story, mother admitted fabricating the account and told a different story. All told, mother gave three radically contradictory accounts. The social worker explained in her report for the court that the parents had concocted an elaborate lie about the manner in which Jorge was injured. The attention to details showed the lies were carefully planned and constructed by both parents to exonerate the mother and protect her unborn baby from ultimate detention.

Mother appeared to feel no remorse about the incident and no concern about the long-term effects of Jorges injuries. She nonchalantly describes the childs long-term sequelae (i.e., sterility) as if it were a minor, insignificant injury, rather than a life-changing one. By contrast, the social worker felt, although the children were of tender preverbal age, that their statements indicated that father had deliberately burned Jorge and that mother, who was in the house at the time, had told father to bathe Jorge. The social worker concluded that mother deliberately lied to protect father, and she was likely abetting another lie, and her reason was to protect herself and father, rather than to protect her children. The social worker concluded that Jorge was deliberately burned or tortured. The child would require years of therapy to overcome the resulting effects of his injures, particularly the disfigurement and impact on his sexuality and fertility as the result of his burns. Even in the unlikely event the injuries were accidental, both parents willfully neglected the child.

In the late summer of 2006, new facts emerged leading to the Departments conclusion that Jorge was deliberately burned as punishment, possibly for a toileting accident, and that mother was home at the time of the incident. The childrens medical records showed a long-standing pattern of missed medical appointments. Also, Jorge had sustained a prior second degree burn to his hand at the end of January 2006.

After a contested hearing, the juvenile court amended the petition to eliminate the allegation that mother had directly caused Jorges injuries and sustained counts under Welfare and Institutions Code section 300, subdivisions (a), (b), (e), (i), and (j).[1]

2. The juvenile court denies mother reunification services and visitation.

At the disposition hearing, mother testified that she planned to sever her relationship with father. She intended to move to Chicago with the maternal grandfather as soon as she regained custody of the children. Mother testified she would address the problem with the children in therapy meaning that she would address how to cope with the fact that the children had been detained from her. Mother explained that she learned something from her anger management class, but she did not have an anger management problem. In her parenting education class, she learned different ways to treat the children when they had tantrums or fought.

With respect to Jorges injuries, mother testified that she was at fault only for changing her story and that father was responsible for the injuries. She did not believe there was anything she could have done to stop father from hurting the child. Asked why she stayed with father if he intentionally burned Jorge, mother did not deny that fathers conduct was intentional. She explained she was waiting to have her third child; she had nowhere else to go; and father was supporting her.

Mother testified she visited the boys twice a week. Hugo threw tantrums but has begun to calm down. The children showed her affection during visits. Often, however, Hugo would not demonstrate affection.

The juvenile court admitted into evidence a parenting education certificate showing that mother completed 10 parenting classes as of July 27, 2006. The court admitted a letter from an individual counseling center that had enrolled mother who was on a waiting list for an available slot. Another letter showed that mother was attending a 26-week anger management program which started in July 2006. As of September 2006, mother stated to her counselor that she did not believe father intentionally burned Jorge, but knew that the Department suspected that father had inflicted the injuries. Mother denied having been at home at the time. According to the therapist, mother requires prompting to share and has minimized any history of domestic or family violence.

At the close of the hearing, the juvenile court declared the children dependents under section 300, subdivisions (a), (b), (e), (i), and (j). The court found by clear and convincing evidence that there was or would be substantial danger to the children if they were returned home and there were no reasonable means by which the children could be protected without their removal from their parents physical custody. ( 361, subd. (c).)

The court then ordered that the parents receive no reunification services by the authority of section 361.5, subdivisions (b)(5) [the child is a dependent under section 300, subdivision (e) because of the conduct of a parent] and (b)(6) [the child was adjudicated a dependent because of severe physical harm by a parent and the court finds that it would not benefit the child to pursue reunification services]. The court separately found pursuant to section 361.5, subdivision (c) that it would not benefit the children to pursue reunification services because the parents had not demonstrated that services were likely to prevent reabuse or continued neglect. The court found that mother had continually lied to the doctors, the Department, and the court, which implicates her . . . . The court was disturbed by the fact that mother had heard all of the evidence and continued to live with father and to believe that he was not the perpetrator. In short, the court noted that mother did not protect [the children] in March. She has not protected them in the last six months. She has not protected her unborn child as she continues to live with father. The court simply did not believe for a second that mother would protect her newborn or the older two children from father. Therefore, the court found it was not in the childrens best interest to continue or to try reunification services. Observing that mother had already participated in six months of programs, the court found she had not learned anything from her programs and believed she would not benefit from further services.

As for visitation, the court granted the parents visits once per month, finding this plan to be in the childrens best interest. When mothers attorney asked for a more gradual transition and a liberal visitation plan, the court allowed visits twice for one month. The court intended to reevaluate after a month. Mother filed her timely notice of intent to file a writ petition.

CONTENTIONS

Mother contends that the juvenile court abused its discretion by denying her reunification services and by severely limiting her visitation.

DISCUSSION

1. The juvenile court did not err in denying reunification services to mother.

Mother contends the court abused its discretion in denying her reunification services. Recognizing that section 361.5, subdivisions (b)(5) and (b)(6) allow the court to deny services to a perpetrator, mother argues that there is no evidence that she was abusive to the children.

As a general rule, reunification services are offered to parents whose children are removed from their custody in an effort to eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. . . . Nevertheless, as evidenced by section 361.5, subdivision (b), the Legislature recognizes that it may be fruitless to provide reunification services under certain circumstances. [Citation.] (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478; accord In re Joshua M. (1998) 66 Cal.App.4th 458, 471.) Subdivision (b) of section 361.5 allows the juvenile court to deny reunification services to a parent when the court finds, by clear and convincing evidence, the presence of one of fifteen exceptions. Hence, there is no constitutional right to reunification; such services are a benefit. (In re Joshua M., supra, at p. 476.) 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., supra, at p. 478.) The juvenile court enjoys broad discretion to determine what best serves and protects the childs interest and to fashion a dispositional order to meet those goals. (Id. at p. 474.) We review the courts determination for abuse of discretion. (Ibid.) We review the findings underlying an order denying services under the substantial-evidence test. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600.)

Among the two bases the juvenile court cited for denying mother services was section 361.5, subdivision (b)(5). That subdivision permits the court to deny 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.

Jorge and Hugo were declared dependents under subdivision (e) of section 300, and mother never challenged that jurisdictional determination.[2] Section 361.5, subdivision (b)(5) has been applied to a nonperpetrating parent who knew or reasonably should have known that the other person was mistreating the child. (In re Joshua H. (1993) 13 Cal.App.4th 1718, 1732.) Although mother may not have actually committed Jorges injuries, the record supports the courts finding by clear and convincing evidence that mother was present when father burned the child over 25 percent of his body and did not protect him, even while he was screaming. There is further evidence that mother knew that father was repeatedly abusing the children and failed to protect either one from fathers severe physical abuse of them. Mother concocted a series of elaborate lies to protect herself and appeared far more interested in shielding herself and father than in protecting her own babies. Moreover, the record amply supports the conclusion that mother exacerbated Jorges harm by neglecting his physical and medical needs during his hospital stay and after he was released. Therefore, subdivision (b) of section 361.5 applies here.

In addition to subdivision (b)(5), subdivision (c) of section 361.5 specifies that the court may not order reunification services under subdivision (b)(5) unless it finds that 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) par. 3.)

To determine whether reunification is likely to prevent reabuse, the statute provides specific guidance to the juvenile court: Among the factors the statute lists for the courts consideration are the parents failure to respond to previous services, a past history of violent behavior, [t]he fact that a parent . . . is no longer living with an individual who severely abused the child may be considered in deciding that reunification services are likely to be successful, provided that the court shall consider any pattern of behavior on the part of the parent that has exposed the child to repeated abuse. ( 361.5, subd. (c), par. 4.)

Mother argues that there is no evidence to support the juvenile courts finding under section 361.5, subdivision (c) that the services would not rehabilitate her. She observes that she had been participating in services and no one contradicted her testimony that she had been visiting the children regularly and appropriately, or that the children were bonded with her. She asserts there is no evidence that mother herself was abusive to the children.

However, the juvenile court was influenced by the fact that mother persisted in her view that father did not intentionally burn Jorge. The court had the statement of mothers therapist, after mother had completed parenting and domestic violence classes that mother minimized any history of domestic or family violence. She appears remorseless about the events, claiming her only fault was in lying about the events. Furthermore, despite mothers testimony that she planned to cease living with father, she has continued to live with him since he inflicted these severe injuries on her son, up to and including the date of the disposition hearing. Mother was pregnant and financially dependent of father. Hence, the court had reason to believe that mothers plan to move to Chicago was a chimera. Additionally, the evidence supports the courts finding that mother has not responded to previous services. The only thing she claims to have learned from her parenting class was how to deal with the boys fights and tantrums; not about how to effectively protect the boys from physical harm. She does not appear to have learned from her anger management class as she claims she has no problem with anger. She did not mention learning effective ways to cope with her own anger or to recognize fathers violent tendencies. Indeed, she continues to deny domestic violence at all. In sum, the record supports the application of section 361.5, subdivisions (b)(5) and (c) to deny services to mother. Having concluded that the juvenile court had a statutory basis for denying mother reunification services, we need not address the second statutory basis, namely, section 361.5, subdivision (b)(6).

2.      The juvenile court did not abuse its discretion in restricting visitation.

Mother contends that the court abused its discretion in limiting her visits with the children. Citing sections 366.21, subdivision (h) and 366.22, subdivision (a), she argues that the juvenile court must permit visitation to continue pending the section 366.26 hearing, unless it finds that visitation would be detrimental to the child. [Citations.] She notes the juvenile court never made a detriment finding.

However, mother relies on the incorrect statutory authority. Where the court has lawfully denied mother reunification services, visitation is governed by section 361.5. Subdivision (f) of that section specifies that If the court, pursuant to paragraph . . . (5), (6), . . . of subdivision (b) . . . does not order reunification services . . . . [t]he court may continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child. (Italics added.)

The term may in [section 361,] subdivision (f) does not mean shall.  (In re J.N. (2006) 138 Cal.App.4th 450, 457, fn. omitted.) Rather, the word may in the last sentence of subdivision (f) is permissive, as giving the juvenile court discretion to permit or deny visitation when reunification services are not ordered, unless of course it finds that visitation would be detrimental to the child, in which case it must deny visitation. (Id. at p. 458, italics added.) This is so, because visitation is not integral to the overall plan when the parent is not participating in the reunification efforts. (Id. at pp. 458-459.) Section 361, subdivision (f) permits the juvenile court, in its discretion, to deny visitation to a parent who has been denied reunification services.

Section 361.5, subdivision (f) does not establish the standard the court should apply when exercising its discretion to permit or deny visitation to a parent who has been denied reunification services. (In re J.N., supra, 138 Cal.App.4th at p. 459.) The J.N. court applied the best interests-of-the-child standard. (Ibid.) Accordingly, we review the courts visitation order to determine whether it abused its discretion in finding that more contact with mother would not be in the childrens best interest. (Ibid.)

Here, when the juvenile court ordered monitored visitation once per month, it specifically stated that it found this plan to be in the childrens best interest. At mothers request, the court allowed two visits in a month and agreed to reevaluate thereafter. We find no abuse of discretion here. There is simply no evidence that mother is capable of protecting her children from physical abuse. Rather, she lies repeatedly to deflect focus from herself. Her negligent attention to Jorges medical needs and her refusal to acknowledge her or fathers part in his injuries underscores her insensitivity to the long-term physical and psychological effects of this childs harm. While she insists the children have bonded with her, she also acknowledged that Hugo throws tantrums and often refuses to demonstrate affection. The record supports the conclusion that not only has mother repeatedly failed to protect these little boys, but she has participated in their harm and is disinterested in acknowledging this fact or making any changes to her lifestyle. The juvenile court clearly exercised its discretion in concluding that visitation would not be in these childrens best interest.

Mother argues that the visitation order precludes her from filing a successful petition for modification ( 388) before the section 366.26 hearing, and precludes her from establishing the parental-relationship exception to termination of parental rights. ( 366.26, subd. (c)(1)(A).) The court in In re J.N. rejected a similar argument made by the mother who was denied reunification services and visitation under section 361.5. Although this reality may be an unfortunate by-product of the courts order, it does not provide a legitimate basis for attacking it. As we have explained, the court may deny visitation to an incarcerated parent who has been denied reunification services, even in the absence of any showing that continued visitation would be detrimental to the child. Because mother failed to show the court erred in denying her visitation under the circumstances of this case, her attack fails. (In re J.N., supra, 138 Cal.App.4th at p. 460.)

DISPOSITION

The petition is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.

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[1] All further statutory references are to the Welfare and Institutions Code.

[2] Subdivision (e) of section 300 allows the court to declare a child a dependent of the court 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. 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 . . . or more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness . . . . (Italics added.)