Latisha E. v. Super. Ct.

Filed 5/14/08 Latisha E. v. Super. Ct. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Marsha Slough, Judge. Petition denied.

David M. Levy for Petitioner.

No appearance for Respondent.

Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Real Party in Interest.

In this petition for writ relief, Latisha E. (mother) asks us to vacate the juvenile courts order denying her reunification services and setting a selection and implementation hearing pursuant to Welfare and Institutions Code section 366.26^[1]for her daughter, A. T. She asserts that there was insufficient evidence upon which to base the courts finding that her neglect was a substantial factor in leading to the death of A. T.s sibling. According to mother, because that finding is not supported by the evidence, the court erred in denying her reunification services pursuant to section 361.5, subdivision (b)(4) and (6). We disagree with mothers assessment of the evidence, and so deny her petition.

FACTS

Mother had a family consisting of her children A. M. (born Jan. 2001), A. T. (born Nov. 2003), and the now-deceased E. M. (born Dec. 2005). In November 2007, mothers boyfriend of several months, Francisco, and his son Moses moved in.

Francisco was violent and beat mothers children as well as his son. The couple fought because of his physical abuse of the children as well as Franciscos jealousy. Mother kicked him out of the house several times but always allowed him back into the home and never called the police. Mother explained to the social worker that she was tired of being alone and was looking for love. Despite her awareness that Francisco was beating her children, mother continued to leave them in his care.

Mother and Francisco took E. M. to the hospital on December 15, 2007. The child was dead on arrival. The child had multiple bruises and abrasions to her body, most notably a severely bruised upper left thigh, an unexplained abrasion to the upper left thigh, deep bruising on the right thigh, and multiple deep bruises to the abdomen, chest, and back. The social worker learned later that the child also had multiple bruises and trauma to the top, back, and side of her head. The autopsy revealed that E. M. had suffered a laceration to the left and right lobe of her liver, multiple impacts to her abdomen, a possible rupture to her pancreas, internal bruising of the stomach, and bleeding and laceration to the mesentery. Peritonitis had set in due to the internal bleeding and her abdominal cavity was filled with bloody matter. The cause of death was ruled as blunt force trauma to the abdomen and the case has been ruled a homicide.

When questioned by a police detective, mother initially stated that Francisco was a good person who treated the children appropriately. As the interview went on, mother changed her story and stated that Francisco hit all the children every couple of days. She said he was rough with them and she had to calm him down. He would hit E. M. really hard on the leg, resulting in bruises, and he would grab and push her. Mother said she saw him hit her daughter every day of the week before her death, and saw bruises on her body the previous weekend.

Francisco hit E. M. on Tuesday night, but was left alone with her on Wednesday. On Wednesday evening mother took E. M. to a medical clinic because she had black diarrhea and was vomiting. She reported these symptoms to the doctor who prescribed an antibiotic and ibuprofen. Mother stated that the doctor never really examined E. M. and mother never told him that her child was beaten and bruised.

Francisco again hit E. M. on Thursday because she was vomiting and not eating. Mother admitted she was aware of this and stated that she heard her daughter crying after Francisco beat her.

On Friday, Francisco beat his son Moses and mother called Franciscos sister to come over and intervene because he was calling her and the children bitches and he was hitting them. Mother also called her father to come over. Mother claimed that Francisco did not hit E. M. on Friday, but she herself hit her on the legs.

Mother says she and Francisco had an argument on Friday and he called her an asshole for protecting her kids. She hit him but he did not hit her back. After the fight, mother smoked some marijuana and went to bed. When she awoke, E. M. was bruised and was not breathing; mother and Francisco drove E. M. to the hospital.

The surviving children, A. M. and A. T., both reported to the social worker that they had been hit by mother and Francisco and had bruises as a result. A. T. also said that Francisco threw [E. M.] on the bed and now shes dead. A. T. said he hit her sister because she would not eat.

Francisco was arrested for murder and assault on a child; mother was arrested for child endangerment. Dependency petitions under section 300 were filed on behalf of A. T. and A. M. alleging serious physical harm; failure to protect; causing another childs death through abuse or neglect; no provision for support; and abuse of a sibling. In addition to those allegations, it was further alleged that mother suffered from a substance abuse problem that impaired her ability care for her children.

The contested jurisdiction and disposition hearing was held on March 11, 2008, and upon its conclusion, the court found the allegations of the petition as to mother were true and ordered that no services be provided to her under section 361.5, subdivision (b)(4), finding that she contributed or caused the death of another child through abuse or neglect, and subdivision (b)(6), in that the children came under section 300 due to severe physical abuse inflicted on their half sibling. The court commented that any efforts on the part of mother to protect her children were deminimis. A selection and implementation hearing was set as to A. T.^[2]

DISCUSSION

Mother concedes jurisdiction was properly taken because of her substance abuse problem and acknowledges that domestic violence did occur between her and Francisco.^[3] Because there was no attempt to show that she inflicted the fatal injuries, she argues that the crucial issue is whether her neglect was a substantial factor in E. M.s death.

Mother characterizes her actions as being creditable but ultimately futile attempts to protect her children from Franciscos violence. She points out that she fought with him on numerous occasions during their three-month relationship about his violence and had him leave the home. She also contacted Franciscos sister and her father to help her in controlling his behavior. Finally she sought medical care for E. M. four days prior to the childs death.

We cannot share in this sanguine view of mothers conduct. Her actions show that she was well aware of Franciscos violence but chose to continue this relationship, placing her children in peril. She chose this relationship even in the knowledge that all of the children had been beaten and that E. M. had sustained traumatic injuries. Although she sought medical attention for E. M., she advised the doctor only of the childs symptoms, but not of her multiple bruises. In the days that followed, mother returned with the child to Francisco, where more injuries were inflicted. Mother even saw fit to spank the child herself because the poor thing had no appetite. The night before E. M.s death, mother chose to get high rather than tend to her ill child.

In Patricia O. v. Superior Court (1999) 69 Cal.App.4th 933, reunification services were denied to a mother after her boyfriend caused the death of her youngest child. The deceased child had several bruises of different ages, indicating chronic abuse; a sibling had been abused by the boyfriend in the mothers presence, and that child repeatedly told the mother of the boyfriends abuse, but mother did nothing to stop it; and mother visited the boyfriend and telephoned him frequently while he was in jail awaiting trial for the murder of her child, and indicated she still had feelings for him.

Mother in this case has exhibited an even more appalling disregard for the safety of her children. She witnessed the extreme violence perpetrated on her children by her boyfriend of three months, but she chose to leave them in his care. She witnessed the injuries inflicted on E. M. and the prolonged suffering endured by this child in the week before her death but continued to allow this man to heap even more abuse on her. We can imagine no clearer case of a parents neglect causing the death of a child and, consequently can find no error in the juvenile courts decision to deny mother reunification services.

DISPOSITION

The petition is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

KING

J.

We concur:

RAMIREZ

P. J.

HOLLENHORST

J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] This petition concerns A. T. only. Mother has apparently filed a separate writ petition pertaining to A. M.

^[3] She attempts to put a positive spin on the latter by asserting that it occurred as a result of her attempts to protect her children.