Rose M. v. Sup. Ct.

Filed 10/18/06 Rose M. v. Sup. Ct. CA4/1

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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. Harry Elias, Judge. Petition denied; request for stay denied.

Rosa M., the maternal grandmother and former guardian of five of her grandchildren, seeks writ review of orders terminating her guardianship, denying her reunification services and referring the matter to a Welfare and Institutions Code section 366.26 hearing.^[1] She contends the juvenile court erred in denying her reunification services and in terminating the guardianship. We deny the petition and deny the request for a stay.

FACTUAL AND PROCEDURAL BACKGROUND

Through an October 2004 Arizona court order, Rose became the guardian of the five children of her daughter (E.R.). Beginning in May 2005, the children lived with Rose in Arizona for much of the time. E.R and the children's father, Michael W., had an extensive history of domestic violence. Rose said she sent the children back to live with E.R. around Halloween 2005 so they could spend the holiday with their youngest sibling, Bella, who was born after the guardianship order. She said the children wanted to see Michael, and the maternal grandfather, Hector R., was to supervise any contact he had with them.

On January 11, 2006, 14-month-old Bella was rushed to Children's Hospital, suffering from a skull fracture, brain bleeding and retinal hemorrhages. She died that day. She was in Michael's care at the time she was injured. Michael indicated one of the other children had jumped on Bella, but the examining doctor said a young child probably would not have been able to cause such injuries. The San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of the other children under section 300, subdivisions (a) and (b) based on domestic violence. The petitions were later amended to add another allegation under section 300, subdivision (b) and allegations under section 300, subdivisions (f) and (j) based on domestic violence and the severe physical abuse of Bella. The court ordered the children detained, ordered supervised visits, and appointed counsel, including counsel for Rose.

Rose said she knew that in the past E.R. had taken out restraining orders against Michael, but then allowed him to be in the home. She told of a time when he forced his way into her home and she (Rose) broke his kneecap with a bat. Hector said he was aware Michael and E.R. had resumed their relationship, but he could not do anything about it because Michael is the children's father. The maternal step-grandmother said she had warned Hector and Rose that Michael and E.R. were back together and she was afraid Michael would hurt someone. Rose said she thought the children would be safe because she told E.R. if she learned they had contact with Michael, she would take them back.

The psychologist who examined Rose said she was extremely guarded and tended to project aggressive impulses and anger toward others. The psychologist opined there was nothing to suggest Rose was a threat to the children.

At the jurisdictional hearing the social worker opined the children would be at risk with Rose because she knew of the parents' domestic violence, but allowed the children to return to E.R. Also, she attacked Michael with a bat in the children's presence and did not ensure they enrolled in school when they returned to E.R. The social worker said that while they were at the hospital with Bella, Rose said she had asked E.R. if she was waiting for Michael to kill one of the children before she left him, and that the children had told her about the domestic violence between Michael and E.R.

Rose testified that at the time she sent the children back to E.R. there was no indication E.R. was involved with Michael. She said she planned to call every day and Hector told her he would ensure Michael was not around the children. She testified she had understood Michael had not visited the children for two years. She said, contrary to the social worker's reports, she never said she thought Michael was not a risk because he came and went and never stayed longer than a month.

E.R. testified she believed Michael had caused Bella's injuries. She said she lived with him off and on and he was physically and emotionally abusive. She testified she was not honest with Rose and told the children to lie when Rose asked whether they had contact with Michael. She said that in December 2005 Michael had volunteered to provide childcare and he was caring for Bella when she was injured. She denied having any contact with him after Bella's death. His whereabouts were unknown, but there were indications E.R. was still in touch with him and he had been to her home.

A pediatrician who examined Bella opined the head injury that caused her death resulted from an impact, and she was possibly thrown against something on the floor.

The court made a true finding on the petition. After further testimony and argument, the court declared the children dependents, removed custody and denied services to the parents and to Rose. It then terminated the guardianship.

DISCUSSION

Rose contends the court erred in terminating the guardianship and in denying reunification services. She argues she was able to provide good care and, although the court found she may have known Michael was in contact with the children, she did not know any of them would be harmed. She also claims there was not clear and convincing evidence to support terminating the guardianship.

Section 728, subdivision (a) provides the juvenile court may modify or terminate a guardianship if the child is the subject of a petition filed under section 300. The standard is whether the termination is in the child's best interests. (Probate Code § 1601.) Here, clear and convincing evidence showed it was in the children's best interests to terminate the guardianship. Rose did not protect the children from the known danger of Michael and E.R.'s domestic violence. In the past, she had urged E.R. to get restraining orders against Michael, but she knew he violated the orders. She acknowledged Michael and E.R. had been in a relationship for eight to 10 years, that Michael was in and out of E.R.'s home, and that the home was not safe for the children. She explained to the social worker the children had told her about Michael's physical abuse and that he was especially cruel to the two youngest children. There were indications that Michael was in contact with the family, yet Rose sent the children back to live with E.R., thinking that daily telephone calls, Hector's monitoring and the warning that she would take the children back if Michael was around them would be sufficient to protect them. Rose should have recognized the danger Michael posed. The social worker reported Rose said she had asked E.R. if she was waiting for him to kill one of the children before she left him. Rose testified she had instead asked E.R. if she was waiting for him to kill her (E.R.), which would have left the children without their mother. Rose's poor judgment resulted in tragic consequences. Clear and convincing evidence supported the court's decision that it was in the children's best interests to terminate the guardianship.

Because the court terminated the guardianship, Rose was no longer entitled to reunification services. On May 2, 2006, the Pima County Court in Arizona relinquished to San Diego County its jurisdiction over Rose's guardianship. On June 26, 2006, the juvenile court terminated the guardianship. Rose was not entitled to reunification services.

DISPOSITION

The petition is denied. The request for stay is denied.

O'ROURKE, J.

WE CONCUR:

HALLER, Acting P. J.

AARON, J.

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