Tammie L. v. Sup. Ct.

Filed 4/18/07 Tammie L. v. Sup. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Deborah Daniel, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Petition denied.

Monica Cazares for Petitioner.

No appearance for Respondent.

Ruth E. Stringer, County Counsel, and Jacqueline Carey-Wilson, Deputy County Counsel, for Real Party in Interest.

Petitioner Tammie L. (Mother) is the mother of a two-year-old boy (Son 1) and a 17-month-old boy (Son 2). Mother filed this writ petition pursuant to California Rules of Court, rule 8.452(a) challenging an order setting a Welfare and Institutions Code section 366.26^[1]permanency planning hearing as to the children. Mother contends that the juvenile court erred in denying her reunification services under section 361.5, subdivision (b)(6). For the reasons provided below, we reject Mothers challenge and deny her petition.

I

FACTUAL AND PROCEDURAL BACKGROUND

On October 15, 2006, an immediate response referral was received by the San Bernardino County Department of Childrens Services (DCS) alleging physical abuse to then-11-month-old Son 2 following his admittance to Arrowhead Regional Medical Center for an occipital skull fracture and bruising on his cheeks and upper right thigh. Upon arrival, the worker noted Son 2 had small, circular bruising on both cheeks and a small bruise on his thigh. In addition, Son 2 appeared very small for his age and was very thin and underweight. Son 2 was diagnosed with a skull fracture and failure to thrive. He was malnourished, underweight, anemic, and had an iron deficiency.

Father Henry A. (Father) reported that he had moved out of the home in September 2006 and was not present when Son 2 injured his head. Mother told Father that Son 2 had hit the back of his head during a temper tantrum. Father noted the injury to Son 2s head but did not take him to the hospital immediately because Mother, who was then eight and one-half months pregnant with her third child, lost the baby when her water suddenly broke and had to be taken to the hospital. Father also explained that Son 2 easily bruised and had always been sick, having been born two months prematurely. He stated the bruises on the childs cheeks were the result of attempting to give him some medicine. He further said that Son 2 had problems gaining weight.

Mother, who was in the intensive care unit at St. Bernardine Medical Center, reported that Son 2 had thrown a tantrum in the kitchen when she took some cereal away from him while he was on the floor. Son 2 became angry and threw his head back against the kitchen floor. Mother noted a small bump on his head but did not believe he needed medical care. She also explained that the bruising on his cheeks were the result of a friend grabbing the childs face and saying pretty baby. She also stated that the child bruised very easily. She denied any knowledge of the bruise on the childs thigh and speculated it was because Son 1 was jealous of Son 2 and played very roughly with him. She also denied ever spanking Son 2 or having domestic violence or substance abuse issues.

Son 1, on the other hand, appeared to be well groomed and healthy. He did not have any signs of physical abuse or neglect and appeared comfortable in his paternal grandparents and Fathers presence.

The physicians assistant (PA) reported that Son 2s injuries were consistent with the story provided by Father, i.e., that it was possible that those injuries occurred as a result of the child throwing his body backwards. The PA further noted that his bruising could be a result of his anemia but that the child was in fact malnourished, had an iron deficiency, and was anemic and underweight.

On October 18, 2006, the social worker received information from Son 2s treating pediatrician (Dr. Webster Wong) that Son 2 had a fracture in the left 9th rib that appeared to be healing. Dr. Wong revealed that the fracture appeared old. Father reported that he was unaware of the fracture and speculated that it happened when Son 1 was roughhousing with Son 2 or when Son 2 fell off the bed. Follow-up assessments of the child ruled out additional medical conditions that would cause brittle bones and easy bruising. The children were removed from parental custody and placed with the paternal grandparents.

On October 19, 2006, Son 2 was evaluated by Dr. Amy Young of the Childrens Assessment Center. At the time of the evaluation, Son 2 was found to be emaciated with no subcutaneous fat. Dr. Youngs report noted significant failure to thrive; his weight of 14 pounds at age 11 months was similar to that of an average four-month-old baby. Son 2 also had new and old fractures. He had an acute occipital depressed skull fracture with evidence of soft tissue swelling and hematoma. He also had a healing fractured rib, and his left femur likely had a metaphysical fracture. In addition, Son 2 had trauma to his mouth. He had a healed tear of the upper frenulum and a chip on a portion of the central incisor.

Dr. Young also reviewed Son 2s medical records. Son 2 had four medical visits in his 11 months of life. The first occurred when Son 2 was five weeks old; at that time, he was doing well and growing appropriately. About a month later, however, Son 2 was brought to the emergency room after the parents reported that Son 2 had injured his arm when he fell off the bed earlier that day. The x-rays of Son 2s arm revealed that Son 2 had a transverse left mid-humeral fracture to his arm, which required a splint, and that the injury had occurred about a week earlier. At that time, there was no suspicion of child abuse. Son 2 was then seen on April 20, 2006, when he received his first set of immunizations. After this visit, Son 2 was not seen again until the current injury to his head. Photographs taken of Son 2 on October 19, 2006, showed extensive bruising to the side of his head and behind the ear. The chipped tooth and torn frenulum were also found. Dr. Young reported that the parents stated that all three pregnancies were unplanned and unwanted.

Dr. Young concluded that Son 2s numerous injuries and failure to thrive were consistent with child abuse and nutritional neglect. An extensive medical workup had not uncovered any underlying medical cause to explain any of Son 2s injuries or propensity to injure easily.

On October 20, 2006, section 300 petitions were filed. The allegations as to Son 2 were serious physical harm of Son 2 ( 300, subd. (a)), failure to protect (id., subd. (b)), and severe physical abuse of a child under the age of five (id., subd. (e)); allegations as to Son 1 were failure to protect (id., subd. (b)) and abuse of a sibling (id.,subd. (j)).

At the October 23, 2006, detention hearing, the court found a prima facie case for detention of the children and placed them with the paternal grandparents. In a jurisdictional/dispositional report dated November 9, 2006, the social worker recommended that the allegations in the petitions be found true and that services be denied to the parents pursuant to section 361, subdivision (b)(1). The social worker believed the boys were at great risk of reabuse by their parents. The social worker explained that though it was not evident which parent was directly responsible for the injuries, both parents were at fault and that both parents may have participated in the physical abuse of Son 2. The social worker pointed out if only one parent was responsible, then the other parent was at fault for failing to protect the child from abuse. The social worker opined that the prognosis for the family reunifying was grim based on the severity of the injuries, the length of time over which the injuries occurred, the severe neglect of the child, the parents admissions to authorities that the children were unwanted, and the parents failure to provide reasonable explanations for the childs injuries. The social worker believed that the return of the children to the parents could result in further injury or possible death.

The November 13, 2006, jurisdictional/dispositional hearing was set contested by the parents and the matter was referred to mediation to resolve some issues. The matter was thereafter continued.

On November 30, 2006, Mother underwent a psychological evaluation by Dr. Marjorie Graham-Howard at the request of her counsel. The psychological tests revealed that Mother suffered from mild problems with anxiety, distress, and depression. She also displayed features of borderline personality consistent with problematic interpersonal relationships, particularly with those close to her, and a tendency to have poor or inappropriate boundaries with others. Mother, who was then 23 years old, had admitted to having significant stress and poor parenting skills, but she denied abusing or neglecting her children. She conceded to problematic parenting approaches, such as not being aware of options besides hitting or spanking the children. The doctor noted that the central issue revolved around her reluctance to admit to abusing and neglecting the children and that if treatment required that she make such an admission, Mother was not currently appropriate or ready for treatment. The doctor recommended that Mother be offered reunification services on the condition that this issue be addressed; however, if Mother still refused to admit the abuse and neglect, the doctor opined that such services be terminated or denied.

In December 2006, Mother and Father had completed four and a half hours of an 18-hour anger management course. In addition, the parents had completed four 1-hour therapy sessions and a 15-hour parenting program.

The court-ordered mediation was held on December 5, 2006. Regarding jurisdiction, the parents agreed to submit on the subdivisions (a)(1), (b)(1), (b)(2), (b)(3), and (j)(3) allegations. They contested the subdivision (e)(4) (severe physical abuse of child under the age of five) allegation. There was no agreement as to disposition, and the parents continued to request reunification services.

On January 4 and 8, 2007, Father underwent a psychological evaluation by Dr. Nick Andonov at the request of his counsel. The evaluation noted that Father was a stable individual who provided a nurturing home for his two young children and support for Mother. Based on the psychological evidence obtained, the doctor concluded that there was no indication that Father lacked the requisite parenting skills or that Father was responsible for Son 2s injuries. The doctor also noted that the failure-to-thrive diagnosis should be taken in view of all the circumstances, i.e., Mother was the sole caretaker of a one-year-old child when Son 2 was born and was pregnant with a third child when Son 2 was about three months old. The doctor recommended reunification services and opined that the parents should not be denied the privilege of raising their own children.

The further contested jurisdictional/dispositional hearing was held on January 17, 2007. Regarding jurisdiction, the parents objected to the court taking jurisdiction but offered no affirmative defense. The boys counsel asked the court to sustain the allegations, as they were supported by substantial evidence. After considering the evidence in this case, the juvenile court found all the allegations true as alleged; that Son 2 came within section 300, subdivisions (a), (b), and (e) and that Son 1 came within section 300, subdivisions (b) and (j).

The contested dispositional hearing was thereafter held, with various witnesses testifying. At the beginning of the hearing, the parties stipulated that both parents had been regularly attending family therapy, that neither parent had any prior history with DCS, that both parents had completed a parenting course, and that Son 2 had gained seven pounds and received no additional bruises since placement.

Dr. Andonov testified that he had spent over 10 hours evaluating Father. He stated that, based on the various psychological tests Father underwent and the clinical interview with Father, Father took the responsibility of raising his children seriously; there was no evidence of character disorder or antisocial personality. Dr. Andonov concluded that there was no evidence Father would willfully commit dangerous acts against his children and that Father did not meet the criteria as a child abuser. When it was pointed out that Father separated from Mother after Son 1 was born due to his bar hopping, Dr. Andonov stated that that information would not change his basic opinion that Father had the requisite parenting and nurturing skills. Dr. Andonov also asserted that he did not believe Father was in denial about the abuse.

Dr. Marjorie Graham-Howard testified that Mother appeared mentally intact; that Mothers understanding and conceptualization of parenting was limited, as she did not have good role models; and that none of Mothers pregnancies were planned. While Mother did not plan her first child, she ultimately wanted the child; however, the second child was not wanted, and the third pregnancy was overwhelming to Mother. The doctor noted that Mother would not admit that she abused or neglected her children but admitted to many other problems that led up to the abuse, which was viewed as a positive prognostic indicator. The doctor recommended services to Mother and opined that Mother would benefit from them, even though she continued to deny the abuse. However, Dr. Graham-Howard noted that if Mother continued to deny the abuse, she would have to reevaluate the issue, and noted that she would be cautious with Mother interacting with the children without supervision. The doctor admitted that Mother continued to deny neglecting and abusing Son 2 and that to prevent reabuse, the parent needed to admit or address that he or she abused the child. The doctor explained that it was very, very difficult to do treatment with someone who wont admit theyve done something wrong.

The social worker testified that she continued to recommend no services to the parents based on their denial of the abuse, the extent and severity of the abuse, and the age of the children, despite the doctors recommendations. The social worker did not believe there were any services that could be given to the parents to prevent reabuse.

Father testified that he had been attending anger management classes and counseling and that he had completed a 15-hour parenting program. He then described the skills he had learned in the courses. He denied he caused any injuries to Son 2, claiming they were either accidental or that he was unaware of the injuries. Though he acknowledged the injuries existed, he denied that Mother caused the injuries and claimed to have no knowledge of how they could have occurred.

Mother admitted that she was responsible for Son 2s failure to thrive, explaining that she gave him the wrong foods. She stated that all three pregnancies were unplanned but wanted and that she had never considered terminating the pregnancies. She listed the various courses she had taken and described the lessons she had learned from the classes. Even though she admitted that the children were with her at all times, she could not explain the injuries on Son 2s body and felt she was not responsible for those injuries.

Following argument from counsel and considering all of the evidence, the juvenile court found there was clear and convincing evidence that Son 2 sustained and suffered severe physical injuries. The court explained, There was chronic extensive neglect of a child to . . . a point where its not just characterized as the child being malnourished or a failure to thrive diagnosis, but this child was described by more than one medical professional as emaciated. At eleven and a half months the child had an average weight of a four-month-old child. This did not happen overnight. This was a problem that was clearly apparent to the parents, yet nothing was done. [] In addition, this child sustained serious head trauma, an occipital skull fracture with soft tissue swelling [and] bruising . . . . There was also old fractures, healing rib fractures, and either a distal left femur fracture or some sort of traumatic injury to the childs femur, . . . prior broken arm, significant bruising, chipped tooth, torn . . . frenulum. [] . . . [] Neither parent has taken responsibility for any of these injuries. The father is willing to accept minimum responsibility for not getting medical care at some point, but both parents refuse to accept responsibility for the neglect of the child and for the physical injuries the child sustained.

The court found the social workers testimony credible when she described there being no services in place to prevent reabuse based on the seriousness of the injuries, the multiplicity of the injuries, the level of neglect, and the failure of either parent to accept responsibility. The court did not attach a lot of weight to Dr. Andonovs testimony, as he did not view this case as an abuse case and did not believe either parent abused the child. The court found Dr. Graham-Howards testimony very credible, especially when she stated that if the parents were in denial after three months of services, offering services should be reassessed. The court noted that the parents had been involved in services for 103 days, yet they still continued to deny the abuse. The court found that the parents had failed to meet their burden to show by substantial evidence that services were likely to prevent reabuse, that it would not be detrimental to the children not to offer services to the parents, and that it was in the childrens best interest to consider termination of parental rights.

The parents were denied reunification services pursuant to section 361.5, subdivisions (b)(5) and (b)(6), and the children were adjudged dependents of the court. The court set the matter for a section 366.26 selection and implementation hearing and advised the parents of their writ rights.

On January 29, 2007, the parents filed a notice of intent to file a writ petition pursuant to California Rules of Court, rules 8.452 and 8.456.

On March 2, 2007, Fathers counsel declared that he had carefully reviewed the record on appeal and found no legal or factual issue upon which to base an extraordinary writ. On March 9, 2007, this court dismissed Fathers writ petition.

II

DISCUSSION

Mother argues the juvenile court erred in denying reunification services and in finding that it was not in the childrens best interests to offer services to her. We disagree.

On review of the juvenile courts findings, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the courts determinations; and we note that issues of fact and credibility are the province of the trial court. [Citation.] (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)

The court found by clear and convincing evidence that Son 2 was a child described in section 300, subdivisions (a) and (e).

Section 361.5, subdivision (b)(5) provides that reunification services need not be provided to a parent or guardian when the court finds by clear and convincing evidence that 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.

Section 361.5, subdivision (c) provides, in pertinent part, that the court shall not order reunification in any situation described in paragraph (5) of subdivision (b) 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. The social worker shall investigate the circumstances leading to the removal of the child and advise the court whether there are circumstances that indicate that reunification is likely to be successful or unsuccessful and whether failure to order reunification is likely to be detrimental to the child.

The burden of proving that reunification services would likely prevent reabuse, or that failure to try reunification would be detrimental to one or both of the boys, is on Mother. (Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 163.) Once is it established by clear and convincing evidence that a minor falls within the provisions of section 300, subdivision (e), the general rule favoring reunification services no longer applies. (Raymond C., at p. 164.) Instead, there is a legislative assumption that providing services would be an unwise expenditure of governmental resources. (Ibid.) While a social services department has a statutory duty to investigate and prepare a report for the juvenile court about the prognosis for a successful reunification, it is not required to prove the services will be unsuccessful. (Ibid.)

The record here establishes that the social worker investigated the circumstances leading to the boys removal and advised the juvenile court whether reunification was likely to be successful or unsuccessful. The social study detailed the severity of Son 2s injuries, including that the injuries must have been sustained on different occasions and could not have occurred accidentally. The social worker recommended services be denied because of Son 2s severe injuries, the length of time of the injuries, the severe neglect of the child, the parents failure to provide reasonable explanations for the childs injuries, and the parents denial of responsibility. DCS fulfilled its duty to investigate and advise the court.

Contrary to Mothers arguments, she did not show that reunification services would likely prevent future reabuse or that a failure to provide services would be detrimental to Son 2. The psychologist who evaluated Mother opined that Mother would benefit from services, even though she continued to deny the abuse. However, Dr. Graham-Howard also concluded that if Mother continued to deny the abuse, she would have to reevaluate the issue; to prevent reabuse, the parent needed to admit or address that he or she abused the child. She also cautioned that Mother should not be interacting with the children without supervision. Dr. Graham-Howard explained that it is very, very difficult to do treatment with someone who wont admit theyve done something wrong. The court found Dr. Graham-Howard to be very credible. Mother continued to deny neglecting and abusing Son 2, despite receiving services for about three months. Mother acknowledged she was with her children all the time, but she could not explain, and would not take responsibility for, the multiple fractures, scars, and bruises Son 2 sustained. Based on the record in this case, Mother failed to meet her burden of proof to establish that reunification services were likely to prevent reabuse.

Mother also has not shown the court erred in finding that denying services to her would be detrimental to Son 2. Mother did not produce evidence to show Son 2 was strongly bonded to her. He was only 11 months old at the time of removal. During the time he was living with Mother, he suffered nonorganic failure to thrive or malnourishment, serious head trauma, fractures, broken bones, a chipped tooth, and bruises on his face and thigh. After Son 2 left Mothers care, he gained weight and suffered no additional bruising. In addition, Mother repeatedly informed authorities that the pregnancies were unplanned and the children unwanted, especially the second child (Son 2). The court could reasonably infer that Son 2 and Mother did not have a close, positive bond. Mother has not shown error.

Mother also contends that the juvenile court erred in finding that section 361.5, subdivision (b)(6) applied to the child Son 1.

Regarding services as to Son 1, the court denied services to the parents pursuant to section 361.5, subdivision (b)(6), finding severe physical abuse to a sibling. The court concluded that both parents should be characterized as offending parents, explaining, These injuries to [Son 2] were either at the hand of one or both of the parents and the other either knew or should have known about the injuries and about the withering away of this child by the constant and long-term neglect that resulted in his condition at the time of removal in October.

According to section 361.5, subdivision (b)(6), a finding of severe physical harm may be based upon deliberate and serious injury inflicted to or on a childs body or the body of a sibling or half-sibling of the child by an act or omission of the parent or guardian, or of another individual . . . with the consent of the parent or guardian; . . . or any other torturous act or omission that would be reasonably understood to cause serious emotional damage. Thus, there need not be evidence of a physical act perpetrated upon the child. An omission causing a serious physical injury or emotional damage is sufficient.

By its terms, section 361.5, subdivision (b)(6) operates to dispense with the requirement for reunification services for an offending parent -- the parent whose infliction, by action or omission, caused serious physical injury or emotional damage to the child or that childs sibling or half sibling. (See also In re Kenneth M. (2004) 123 Cal.App.4th 16, 20.)

Mother claims that the perpetrator has not been identified and therefore, the court can not predicate a finding denying [Mother] reunification services pursuant to section 361.5, subdivision (b)(6). We find this argument unmeritorious. The evidence supports a finding that Mother was responsible for the severe injuries Son 2 sustained; in fact, she admitted that she was responsible for Son 2s failure to thrive. Mother also acknowledged that Son 2 resided with her at all times; when Son 2 suffered from the severe head trauma, Father was not even residing in the home. In addition, Mother stated that Son 2 bumped his head on the kitchen floor when he threw his head back following a temper tantrum, but she failed to get him treatment. At the very least, Mother failed to protect Son 2 from the severe physical abuse. There was more than sufficient evidence to show that section 361.5, subdivision (b)(6) applied to Mothers acts and omissions. Thus, there was adequate evidence in the record to support the juvenile courts finding that both parents were responsible for Son 2s condition. Because Mother and Father were responsible for the severe injuries to Son 2, section 361.5, subdivision (b)(6) was appropriately applied to deny them both reunification services as to Son 1 as well.

III

DISPOSITION

The petition for extraordinary writ is DENIED.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

RAMIREZ

P.J.

McKINSTER

J.

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