In re Nathan A.
Filed 8/6/13 In re Nathan A. CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
TWO
In re NATHAN A., a Person
Coming Under the Juvenile Court Law.
B245254
(Los Angeles
County
Super. Ct.
No. CK82342)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Appellant,
v.
KARINA G.,
Defendant and Respondent.
APPEAL from
a judgment of the Superior Court
of
County.
Debra Losnick, Juvenile Court Referee. Reversed and remanded.
John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel, Kim Nemoy, Deputy County Counsel, for
Plaintiff and Appellant.
Roni
Keller, under appointment by the Court of Appeal, for Defendant and Respondent.
___________________________________________________
>
The juvenile
court granted Karina G. (Mother) reunification
services with her newborn son Nathan A. despite finding that she (1) caused
the death of a six-month-old daughter and (2) lost parental rights to her son
Alex. There is no evidence that Mother
resolved her past problems: on the
contrary, Mother denies any wrongdoing.
The court cannot order reunification services for a parent who caused
another child’s death unless there is clear and convincing evidence that
reunification is in the surviving child’s best interest. (Welf. & Inst. Code, § 361.5, subd. (c).)
presumption against reunification.
FACTS
The Prior Writ Proceeding
We take
judicial notice of a writ opinion relating to the death of Mother’s daughter
Laylanee.
stated in the writ opinion.
Mother and
her biological children, Alex and Laylanee, lived with three maternal
relatives: the children’s grandmother
(MGM), aunt (Gabby), and an uncle. In
October 2009, six-month-old Laylanee was found face down and motionless in her
crib, and was pronounced dead by paramedics.
In May 2010, the LAPD took two-year-old Alex into custody after the
coroner’s office deemed Laylanee’s death “suspicious.†When detained, Alex smelled bad, his clothing
was stained and dirty, and his diaper was soaked.
Mother and
the MGM were placed in an LAPD interview room, where their conversation was
monitored. The MGM warned Mother not to
change her “story,†and the two women agreed that they needed to talk to Gabby
before the LAPD did so. LAPD officers
promptly interviewed Gabby, who told them that Mother inflicted Laylanee’s
injuries in the presence of the MGM.
Gabby believed that Mother could “have done something†to Laylanee: Mother considered Laylanee to be a burden and
resented the baby because the biological father abandoned them due to
Laylanee’s birth. Gabby believed that
Mother injured Laylanee’s head, though she never saw Mother strike the baby.
The LAPD
arrested Mother and the MGM for child abuse.
(The MGM served time in 1993, when she was convicted of felony child
cruelty for inflicting burns on Mother.)
DCFS assumed custody of Alex and filed a dependency petition alleging
that Laylanee suffered traumatic brain injuries while in Mother’s care, placing
Alex at risk of similar harm. Attached
to the detention report was an autopsy report stating that Laylanee had brain
malformations and hemorrhages indicating prior head trauma.
During interviews with DCFS, Mother
stated that Laylanee was alive and well when Mother left to go shopping; the
infant was being babysat by Gabby when she was discovered dead in her
crib. When questioned about possible head
trauma, Mother described an incident in which Laylanee accidentally rolled off
the couch and onto the floor while Mother was in the kitchen: Mother did not seek medical attention because
Laylanee was not bleeding. Mother
initially insisted that this was the only incident in which Laylanee suffered
head trauma. However, in a subsequent
interview with law enforcement officials, Mother admitted that one month before
Laylanee’s death, she threw the baby up into the air and did not catch her. Laylanee landed on her head when she hit the
floor. Mother did not seek medical
attention for Laylanee.
A follow-up autopsy report by the
coroner revealed evidence of three different head injuries occurring at
different times, with no explanation that the
inflicted. The medical evidence
indicated a reasonable probability that this is a case of battered child
syndrome. Laylanee’s death certificate
was amended by adding the words “abusive head trauma†and the manner of death
was ascribed to “homicide.â€
At the jurisdiction hearing, Mother
invoked her Fifth Amendment right against self-incrimination and refused to
testify. A neuropathologist from the
coroner’s office testified that he observed three injuries on Laylanee’s
brain. Two of the injuries were caused
by a lack of oxygen, such as repeated episodes of suffocation or an obstructed
airway. A subdural hematoma was likely
caused by trauma to the baby’s head. The
physician could not determine the cause of death based on his examination of
Laylanee’s brain alone, but was inclined to agree that Laylanee was a victim of
battered child syndrome. The medical
examiner who performed the initial autopsy testified that there were no signs
of bruising or skeletal fractures; however, there was a brain hemorrhage
occurring within 24 hours of death, and the brain appeared enlarged and
abnormally shaped. The examiner agreed
that “abusive head trauma†contributed to Laylanee’s death in some fashion. A defense expert testified that Laylanee died
of an acute brain bleed, likely due to brain malformations, and that the
hematoma on the infant’s brain possibly resulted from falling off the couch and
more likely resulted from her head hitting the floor when Mother tossed her in
the air but failed to catch her.
Maternal aunt Gabby testified that
Mother was a “good mother†to Laylanee and Alex. She stated that LAPD detectives had subjected
her to aggressive questioning and basically forced her to falsely implicate
Mother in Laylanee’s death. Gabby maintained
that neither Mother nor the MGM was violent toward the children.
The juvenile court sustained
allegations of endangerment against Mother and assumed jurisdiction over
Alex. Mother asserted the Fifth
Amendment and refused to testify about her progress with reunification
services. The court found by clear and
convincing evidence that Mother caused Laylanee’s death by abuse and neglect,
and that it would not be in Alex’s best interest to reunify with Mother. The court terminated reunification services
and scheduled a permanent placement hearing.
Mother filed a writ petition
challenging the termination of reunification services and the scheduling of a
hearing to consider termination of parental rights. This Court found ample evidence of repeated
injury inflicted upon Laylanee, and that Mother caused the child’s death
through abuse or neglect. Mother
admitted that Laylanee twice suffered head trauma in her care, once from
rolling off a couch while unsupervised, and once when Mother tossed her in the air
and her head struck the floor. Mother
failed to seek medical attention in both instances. The testimony from physicians at the
coroner’s office showed that the baby sustained three different
battered child, leading to a coroner’s finding that her death was a
“homicide.†Because Mother caused
Laylanee’s death through neglect or abuse, the court properly denied
reunification services with Alex. The
petition for an extraordinary writ was denied.
The Nathan A. Petition
Mother’s son Nathan was born in May
2012. At the hospital Mother was
initially “nonresponsive†to her infant.
She sought very little prenatal care and last saw a physician in November
2011. The hospital became suspicious and
alerted DCFS after Mother disclosed that one of her babies died and her
parental rights to the other child were terminated in March 2012.
In an interview with a DCFS social
worker, Mother ascribed Laylanee’s death to a congenital malformation. She maintained that she lied to the police
when she told them that Laylanee fell from the sofa, or that she threw Laylanee
up in the air and failed to catch her.
Mother was happy with newborn Nathan because she feels that the baby’s
father, G.A. (Father) is supportive.
DCFS filed a petition on behalf of
Nathan on May 14, 2012. It alleged that
Nathan is at risk of serious physical harm because Mother caused the death of a
sibling who was abused or neglected by Mother, and the death was deemed a homicide. Further, Nathan’s sibling Alex received
permanent placement services due to Laylanee’s death. The court found a prima facie case for
detaining Nathan from Mother’s care and he was placed in Father’s custody as a
non-offending parent, under DCFS supervision.
Mother was given monitored visitation.
A jurisdiction/disposition report
was submitted by DCFS. In her statement,
Mother was vague about the cause of Laylanee’s death: she variously stated that Laylanee died from
being in a broken baby crib that lacked a screw; she told police that “I tossed
her in the air and I couldn’t catch her and she fell on the floorâ€; she also
told police on a different occasion that Laylanee fell from a couch. Mother insisted that “[t]here was no evidence
that I did something. . . . I didn’t do
anything bad. I never abused them. The only big bad mistake was changing my
versions†of how Laylanee sustained head injuries. Mother asserted that “it’s unfair that we are
in the system. I think it’s unfair that
they see my background.â€
In his statement, Father indicated
that Mother told him at the outset of their relationship that “Laylanee passed
away from SIDS.â€
title="">[3] Father attributed Mother’s neglect to lack of
maturity (Mother was 19 when Laylanee died) and a defective crib, saying, “I
think it was the crib that caused the death.
They didn’t see any bruising. . . .
My focus is on the crib because that’s where they found her dead.â€
DCFS recommended that Mother
receive no reunification services because she caused the death of a child. Mother gives conflicting stories about
Laylanee’s injuries and falsely told Father that the baby died of SIDS. Father denies the gravity of the situation,
insisting that Laylanee died of SIDS even after he was presented with
information regarding Laylanee’s physical injuries and parental abuse. Father lacks insight into Mother’s behavior.
In a last-minute addendum, DCFS
reported that Mother was visiting three times weekly, with Father serving as a
monitor. Mother claimed to have
completed parenting, anger management and individual counseling, but was unable
to produce certificates of completion.
Upon speaking to the director of Mother’s program, the DCFS social
worker learned that Mother had recently enrolled and had participated in only
two parenting sessions. Mother was not
forthcoming about her compliance with the case plan, which minimized the
probability of successful rehabilitation.
The petition was adjudicated on
August 29, 2012. The court sustained
allegations that Mother caused the death of a child in her care, thereby posing
a risk of serious harm to Nathan. Nathan
was declared a dependent child pursuant to section 300, subdivisions (a), (b),
(f), and (j). Nathan’s attorney asked
the court to deny reunification services, given that there was a lengthy
dependency trial for Mother’s son Alex in which the court determined that
Mother did, in fact, cause Laylanee’s death.
DCFS observed that Mother believes the big problem is that she changed her
story too often, not that she caused a child’s death. DCFS argued, “There is no sense of
remorse. There is no sense of
responsibility.â€
After acknowledging the opposition
of DCFS and Nathan’s attorney, the court granted Mother reunification
services. It stated, “I do think that
the child would benefit from the mother being ordered reunification
services. I do feel that it may
ameliorate the risk that may be presented to the child by the mother. The mother has already shown her willingness
and ability to care for the child at least in the sense of breastfeeding the
child.†The court directed Mother to
participate in parenting education and individual counseling with a licensed
therapist who must be provided with all of Mother’s DCFS history and reports. DCFS appeals.
DISCUSSION
Appeal is
taken from the disposition order granting Mother reunification services. (§ 395.)
While family reunification services are generally offered when a
dependent child is removed from parental physical custody, reunification
services are not appropriate in every case.
(In re Ethan C. (2012)
or (2) had reunification services terminated for a sibling or half sibling, or
(3) had parental rights to a child permanently severed and has not subsequently
made a reasonable effort to treat the problems that led to the child’s
removal. (§ 361.5, subd. (b)(4), (10),
(11), and subd. (c), italics added.)
When one or more of these conditions apply, the court is prohibited from
ordering reunification services unless the court finds, by clear and convincing
evidence, that reunification is in the best interest of the child. (§ 361.5, subd. (c); In re Ethan N. (2004) 122 Cal.App.4th 55, 64.)
When parental misconduct has
culminated in a death, the circumstances that justify removal of the children
from parental custody give rise to a presumption against reunification. (In re
Ethan C., supra, 54 Cal.4th at p.
634.) For example, a father who killed
an unrelated child when both were minors may be denied reunification services
during his adulthood. (
Cal.App.4th 481, 484, 489-490.) The
Legislative has determined that in some situations, attempts to facilitate
reunification are likely to be futile and may not serve the child’s best
interests. (D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 202.)
The juvenile court has discretion
to decide whether reunification services are in the child’s best
interests. (In re William B. (2008) 163 Cal.App.4th 1220, 1229.) To determine whether reunification is in a
child’s best interests, a parent must demonstrate current ability to parent;
the court also considers parental fitness and history; the seriousness of the
problem that led to the dependency; the strength of the parent-child bond; and
the child’s need for stability and continuity.
A best interest finding requires a showing that reunification services
are likely to succeed. (
281.) If there is no substantial
evidence in the record to support a decision to grant services, then the order
for such services is an abuse of discretion.
(In re William B.,
The juvenile court sustained
jurisdictional findings that Mother caused Laylanee’s death and that Laylanee’s
sibling Alex received permanent placement services due to Laylanee’s
death. Despite jurisdictional findings
that triggered the nonreunification presumption in section 361.5, the court
exercised its discretion and found that reunification is in Nathan’s best
interests because (1) services could ameliorate the risk to Nathan posed by
Mother, and (2) Mother’s willingness to breastfeed Nathan showed an ability to
care for the child.
Mother made no effort to show that
she treated the issues leading to Alex’s adoption following Laylanee’s
death. In fact, she completely denies
culpability. She now attributes Laylanee’s
death to SIDS caused by a broken baby crib and believes she lost Alex because
she told too many versions of how Laylanee sustained head injuries. Far from coming to terms with her history,
Mother complained it was “unfair†that DCFS should bring her history of child
abuse or neglect to the court’s attention.
Mother insists “there was no
evidence that I did something bad. I
never abused them.†Yet evidence in the
prior dependency proceeding showed
that Mother knew Laylanee fell from a sofa and worse, was thrown into the air
by Mother and landed on her head. Mother
never sought medical treatment for Laylanee despite the patent likelihood that
an infant who flies through the air and lands on its head will suffer a brain
injury. In short, there is no evidence
in the record—let alone substantial evidence—that Mother has addressed the
issues that led to the termination of her parental rights to Alex.
“[I]t is ‘“the enormity of a
inadequacy that invokes the provisions of sections 300 and 361.5. [Citations.]
The Legislature has clearly provided that when one’s abuse or neglect
has had this tragic consequence, there is a proper basis for a finding that his
or her surviving child may be made a dependent of the juvenile court, and that,
if the circumstances then also justify the child’s removal from the parent’s or
guardian’s physical custody, a presumption against reunification should
arise.†(In re Ethan C., supra, 54
Cal.4th at p. 634.) Abuse that results
in the death of a child “is simply too shocking to ignore†when granting
reunification services with surviving children:
“The fact of a death and a subsequent petition . . . arising out of that
death simply obliterates almost any possibility of reunification . . . .†(In re
Alexis M. (1997) 54 Cal.App.4th 848, 851, fn. 2.)
The decision in
Ethan’s half-sibling, who died at the age of one month in 2001 from suffocation
due to a wad of paper lodged deep in his esophagus, and suffered contusions to
his head and back, a burn, anal penetration and 12 broken ribs. She consequently lost her rights to two other
children. When Ethan was born in 2003,
dependency jurisdiction was established under section 300, subdivisions (b),
(f) and (j). The court granted
reunification services even though the mother caused the death of one child and
lost her parental rights to surviving children.
(In re Ethan N.,
On appeal in Ethan N., the trial court was found to have abused its
discretion. Substantial evidence
supported the court’s finding that the mother made progress toward alleviating
her drug addiction by demonstrating sobriety and completing drug treatment
programs. (In re Ethan N., supra,
122 Cal.App.4th at pp. 65-66.) However,
there was no substantial evidence that reunification was in Ethan’s best
interest. Merely being Ethan’s
biological parent did not militate in favor of reunification. The gravity of killing a small child
effectively swallowed up competing concerns about the possible benefit of
reunification with a later-born child. (
M., supra, 54 Cal.App.4th 848 [father incarcerated for killing his infant by
shaking and dropping him is not entitled to reunification services].)
In the view of the juvenile court,
Mother demonstrated that she was capable of caring for a newborn because she
was breastfeeding Nathan. Mother’s
breastfeeding is not clear and convincing evidence that reunification is in
Nathan’s best interests. The court
either discounted or did not consider Mother’s overall fitness and history, or
the seriousness of the problem that led to the dependency. As detailed in our opinion in B230008, Mother
resented and abused Laylanee because the child’s birth caused the biological
father to abandon them, and she neglected two-year-old Alex, who was filthy
when he was detained. Mother is now
taking an interest in Nathan because Father takes an interest in the boy. If Father were to leave Mother for a new
girlfriend, or be incarcerated, there is a high risk that Mother would abuse or
neglect Nathan. Certainly, Mother’s
indifference to the well-being of Laylanee and Alex does not bode well for her
future treatment of Nathan.
A best interest finding requires a
showing that reunification services are likely to succeed. That showing was not made in this case. Mother has zero insight into the misconduct
that led to the death of Laylanee and the loss of Alex. Instead of striving to atone for her history
of child abuse and neglect, Mother demands that everyone ignore that history
because it is “unfair†to bring it up.
She takes no responsibility for her conduct. Mother managed to convince Father that Laylanee
died from a defective crib. He told DCFS
that “My focus is on the crib because that’s where they found her dead.†He continued to insist that Laylanee died of
SIDS even after he was presented with proof that Laylanee sustained three
different head injuries occurring at different times, and her death was deemed
a “homicide.â€
It appears that Father, as a
non-offending parent, will keep custody of Nathan. It is chilling to know that Father refuses to
accept that Mother is capable of killing an infant: without this insight, it is difficult to see
how he can protect Nathan from harm.
While acknowledging the possibility that Father will allow Mother
unfettered access to Nathan in the future, it does not justify the use of
government resources to provide reunification services to an unrepentant parent
who caused the death of a child in her care.
The court erred by granting reunification services to Mother because
there is no evidence that reunification is in Nathan’s best interest and no
showing that reunification services are likely to succeed.
DISPOSITION
The order
of the juvenile court granting reunification services to Karina G. is reversed
and the matter is remanded for further proceedings.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
ASHMANN-GERST,
J.
CHAVEZ, J.
name="_ftn1" title="">[1] Unlabeled
statutory references are to the Welfare and Institutions Code.
2011, B230008) (nonpub. opn.). The prior
opinion is a related proceeding leading to the present appeal. (Evid. Code, §§ 452, subd. (d), 459, subd.
(a); Taliaferro v. Davis (1963) 216
Cal.App.2d 398, 401; In re Kinney (2011)
201 Cal.App.4th 951, 954, fn. 3.)
