Filed 11/7/18 K.N. v. Superior Court CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for extraordinary writ. Michael J. Rushton, Judge. Petition denied.

Natasha Fenty for Petitioner.

No appearance for Respondent.

Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Real Party in Interest.

The juvenile court denied petitioner, K.N. (Mother), reunification services as to G.N. (Minor) born in January 2018 pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(10)[1] (reunification services as to previous minors terminated) and (b)(11) (parental rights as to previous minors terminated). In this petition, Mother contends the juvenile court erred in ruling that Mother failed to make reasonable efforts to treat the problems which led to removal of Minor and that the court erred in ruling reunification services were not in Minor’s best interests. The petition is denied.

I. FACTUAL AND PROCEDURAL HISTORY

On January 23, 2018, after Minor’s birth, personnel from real party in interest, Riverside County Department of Public Social Services (Department), filed a juvenile dependency petition on behalf of Minor, alleging Mother had unresolved mental health issues (b-1); Mother had a criminal history, including willful injury to a child (b-2); Mother had an open case with San Bernardino County Children and Family Services (CFS) (b-3); J.N. (Father)[2] had a criminal history including willful injury to a child (b-4); Father had an open case with CFS (b-5); and Minor’s siblings had been abused and neglected (J-1).

Department personnel filed a report reflecting that Minor remained in Mother and Father’s (Parents) custody and was bonding with them; Parents were appropriately caring for her. Mother had prenatal care throughout her pregnancy with Minor. Mother had drug tested negatively. Department personnel had filed a petition due to Parents’ extended history with CFS.

In September 2015, police found the four older siblings restrained in car seats with plastic Kool-Aid jugs over their hands and rope tied around their wrists to secure their hands. Parents reportedly restrained the minors for long periods of time. Ligature marks were found on the minors’ wrists. Parents had been restricting the minors’ food and water intake. They had also neglected the minors’ medical, educational, and mental health needs. There were physical abuse allegations against Parents with respect to one of the minors; that minor had sustained a broken femur and Parents had not taken her to the hospital for three days. Parents were later arrested. Parents had pled no contest to charges of willful injury to a child.

Mother denied having a history of mental illness despite reports she had been diagnosed with schizophrenia and bipolar disorder. Initially, Parents were not willing to accept that the minors had special needs and required ongoing treatment due to their developmental delays; however, Parents eventually accepted this, but believed the issues could be resolved solely through prayer. In all, Parents had been involved in five prior interventions with CFS. On May 17, 2017, the juvenile court terminated reunification services for Parents as to five of the minors. On June 15, 2017, the court terminated reunification services for Parents as to a sixth minor.[3] On October 27, 2017,[4] the juvenile court terminated Parents’ parental rights as to one of the minors.

In the February 16, 2018, jurisdiction and disposition report, the social worker noted Minor remained in the care of Parents with family maintenance services. Parents had been compliant with their probation, which required that they complete a 52-week child abuse program which Mother had completed in January 2018. On November 29, 2017, Parents’ parental rights had been terminated as to the remaining children. Minor continued to appear to be well cared for.

On March 5, 2018, the social worker filed a report requesting removal of Minor. On February 28, 2018, Department personnel received a new referral when Parents brought Minor into the emergency room with facial swelling and a rash. According to Parents, Minor had been vomiting for a week. Parents stated Minor did not appear to be tolerating formula so they had been giving Minor cow’s milk and water based on research obtained online. It was believed that Minor had suffered an allergic reaction to the cow’s milk.

The social worker presented more detailed information about the previous interventions: An allegation as to one of Minor’s siblings alleged she was not speaking, had anemia, was delayed, and exhibited aggressive behavior; as to another sibling that she had a fractured femur, was delayed, aggressive, constantly masturbated, and would play with and eat her own feces; another sibling was believed to have autism, had a heart problem, was aggressive, and would often play with his own feces; another sibling was underweight, delayed, did not like to be touched, and would play with his own feces; another sibling was severely underweight, weighing only 12 pounds. That sibling exhibited an allergic reaction to formula so Parents fed him goat’s milk first and then homemade formula.

Despite nearly two years of services and completion of their court-ordered case plan, it was determined that Parents continued to lack insight for effective, basic parenting. Parents had demonstrated no change in their parenting approach despite the extensive services in which they had participated. Parents had completed psychological evaluations in April 2016, which concluded that Parents could not benefit from services due to their inability to learn and apply skills needed for effective parenting.

Department personnel filed a first amended juvenile dependency petition adding a b-6 allegation that Parents lacked appropriate parenting skills in that Minor was provided cow’s milk, resulting in an allergic reaction, and they failed to take Minor to the doctor. On March 6, 2018, the juvenile court detained Minor.

In an addendum report filed on April 6, 2018, the social worker changed the recommendation to denying reunification services to Parents pursuant to section 361.5, subdivision (b)(10) and (b)(11). Parents reported taking a parenting class. Parents maintained consistent visitation in which they were appropriate and attentive. Mother was participating in individual counseling, but was not consistent in her attendance. Some of her comments during counseling were “‘concerning’”; the counselor believed Mother would benefit from a higher level of counseling, but Mother declined. Mother stated that God cured her children who had autism and she was going to get her children back through God. In one of the previous cases, the social worker had noted that Parents had calculated precise allotments of water intake for each of the minors; Father noted that less water “helped with cleanup of less diapers . . . .” The minors sometimes attempted to “‘sneak water’”; the minors were restrained for “‘nipping food or water.’”

In an addendum report filed on May 24, 2018, the social worker noted Mother had completed a 12-hour parenting class and enrolled in an autism parenting class. A psychological evaluation determined Mother did not display any symptoms of a DSM-categorized psychiatric illness. The psychologist noted that although Mother reported she had been diagnosed with attention deficit hyperactivity disorder and schizophrenia, they were “two opposing diagnoses.” “Neither of these conditions have now, or in the past been adequately treated. She actively avoids any such treatment.”[5] The psychologist noted that while Mother is doing what she is told to do, “the indications are that she is not benefiting from services at present.”

The psychologist reported: “‘While [Mother] has the basic ability to benefit from services, the probability is high that she won’t until she makes a solid decision that she needs to make [a] change in her life style and coping style and I perceive no such change [is] desired at the current time, which means basically that she will also lose child number [seven]. It is important to note that she made no mention of loving or needing her children or anything else that would provide her with the motivation to increase her functioning level.”

In an addendum report filed on July 16, 2018, the social worker reported Mother had participated in seven sessions of individual counseling; Mother’s participation was reported as good.[6] Mother engaged in consistent, appropriate visitation with Minor.

The addendum report filed on August 1, 2018, reflected Mother had continued in individual counseling. She had completed eight hours of a five-week parenting class for parents of children diagnosed with autism. Mother had completed a one-hour online infant nutrition course. She continued to engage in consistent and appropriate visitation with Minor.

In an addendum report filed on August 22, 2018, the social worker reported Mother participated “actively” in 12 sessions of individual therapy during the reporting period. The counselor noted Mother “seems to be willing to learn and is slowly able to utilize more adaptive skills and is willing to practice them.” The counselor reported that the therapy sessions had been completed, but believed “any ongoing treatment that this client may need is out of the scope of [the] practice of our agency services.” Mother continued to engage in consistent and appropriate visitation with Minor.

At the jurisdiction and disposition hearing on August 27, 2018, the parties stipulated that if Mother were to testify, the evidence would establish “that she participated in a Newborn Care, Breastfeeding and First Time Parenting Class, which was provided by Granola Babies Birth and Parenting Education. She represents she participated in this class in July of 2018. It was a one-day class.” After argument, the court found the allegations in the petition true, sustained the petition, declared Minor a dependent of the court, and removed Minor from Parents’ custody. After explicating the reasoning behind its ruling, the juvenile court denied Mother reunification services pursuant to section 361.5, subdivision (b)(10) and (b)(11).

II. DISCUSSION

Mother contends the juvenile court erred in denying her reunification services by relying primarily on the substance of the prior dependency cases and by conflating the “reasonable efforts” standards with curing the bases leading to the allegations in the petition. Mother maintains she presented sufficient evidence to meet the “reasonable efforts” standard for reunification services and that the court erred in ruling reunification services would not be in Minor’s best interest. We disagree.

A. Reasonable Efforts

“As a general rule, when a child is removed from parental custody under the dependency laws, the juvenile court is required to provide reunification services to ‘the child and the child’s mother and statutorily presumed father . . . .’ [Citation.] The purpose of reunification efforts is to ‘eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible.’ [Citation.] However, it is also the ‘intent of the Legislature, especially with regard to young children, . . . that the dependency process proceed with deliberate speed and without undue delay.’ [Citation.] Thus, the statutory scheme recognizes that there are cases in which the delay attributable to the provision of reunification services would be more detrimental to the minor than discounting the competing goal of family preservation. [Citation.] Specifically, section 361.5, subdivision (b), exempts from reunification services ‘“those parents who are unlikely to benefit”’ [citation] from such services or for whom reunification efforts are likely to be ‘fruitless’ [citation]. Once the juvenile court concludes reunification efforts should not be made in a particular case, it ‘“fast-tracks”’ the dependent minor to permanency planning so that a permanent out-of-home placement can be developed. [Citation.]” (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1120-1121 (Jennifer S.) [parents denied reunification services pursuant to both § 361.5, subd. (b)(10) & (b)(11)].)

“The statutory sections authorizing denial of reunification services are sometimes referred to as ‘bypass’ provisions. [Citation.]” (Jennifer S., supra, 15 Cal.App.5th at p. 1121.) Section 361.5, subdivision (b)(10) “‘recognizes the problem of recidivism by the parent despite reunification efforts.’ [Citation.]” (Jennifer S., supra, at p. 1121.) Under section 361.5, subdivision (b)(10) and (b)(11), a juvenile court may bypass reunification services for a parent who failed to reunify with the minor’s sibling and/or had parental rights terminated as to the minor’s sibling and the parent has not subsequently made a reasonable effort to treat the long-term problems that led to the removal of the sibling. (R.T. v. Superior Court (2012) 202 Cal.App.4th 908, 914.) “‘“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.]” (Ibid.)

“The ‘reasonable effort[s]’ necessary to avoid . . . bypass are not synonymous with ‘“cure.”’ [Citation.] They must, however, be more than ‘“lackadaisical or half-hearted.”’ [Citation.] Moreover, not every ‘effort by a parent, even if clearly genuine, to address the problems leading to removal will constitute a reasonable effort and as such render these provisions inapplicable. It is certainly appropriate for the juvenile court to consider the duration, extent and context of the parent’s efforts, as well as any other factors relating to the quality and quantity of those efforts, when evaluating the effort for reasonableness. And while the degree of progress is not the focus of the inquiry, a parent’s progress, or lack of progress, both in the short and long term, may be considered to the extent it bears on the reasonableness of the effort made.’ [Citation.]” (Jennifer S., supra, 15 Cal.App.5th at pp. 1121-1122 [substantial evidence supported court’s bypass order where the mother’s recent “laudable” efforts “came extremely late”; substantial evidence supported court’s bypass order where despite the father’s lack of recent incarceration, the father had a 30-year record of incarceration with 14 separate arrests and long-term substance abuse problem for which he had only recently sought treatment].)

“We review an order denying reunification services under subdivision (b) of section 361.5 for substantial evidence. [Citation.] Under such circumstances, we do not make credibility determinations or reweigh the evidence. [Citation.] Rather, we ‘review the entire record in the light most favorable to the trial court’s findings to determine if there is substantial evidence in the record to support those findings.’ [Citation.] In doing so, we are mindful of the higher standard of proof required in the court below when reunification bypass is ordered.” (Jennifer S., supra, 15 Cal.App.5th at pp. 1121-1122.)

Prior to argument on the issue, the juvenile court indicated that the incident spurring the filing of the amended petition in the present case was virtually identical to the issue in one of the previous cases, i.e., Mother fed Minor watered-down cow’s milk, where in an earlier case she had fed a minor goat’s milk instead of formula or breast milk. Mother had received 18 months of services for the issue but refused to implement any direction or advice from those services. Thus, the court noted that it amounted “to an absolute and total lack of insight on any issue related to [her] parenting.” “So . . . when we talk about reasonable services, how is it that just going to a few classes is reasonable?” The court further noted: “It doesn’t really seem like a vested and legitimate interest in rooting out the underlying issues which have to do with their mindset, their belief that they’re right and everyone else is wrong related to parenting techniques.” “[T]he problem seems to be severely entrenched. This seems to be a very, very serious issue.”

After argument on the issue, the juvenile court exposited that its ruling derived “from the Court’s vantage point [that] it is a very disturbing fact pattern because it is a perfect storm for children being abused and neglected in that we have two parents that, for some reason, are on the exact same page in their wrong-headed analysis of how children should be raised and cared for.” “[W]hat does appear clear to the Court is that these folks had no insight in San Bernardino about what they were doing wrong and continue to demonstrate no insight to this Court.”

“[T]he documentary evidence related to what the parents are doing suggests that they are entrenched in their former way of thinking, and so I have that information as compared to them checking the boxes off by attending some classes and participating in therapy.” “There’s just nothing in those notes to indicate that mother has gained any direction or insight into addressing the problems of San Bernardino [C]ounty.” “You know, when you read that mom and dad figured out how to give them the minimum amount of liquids to survive but to create the fewest dirty diapers, you begin to have some insight into the situation.”

The juvenile court’s assessment of the situation is supported by substantial evidence. Minor had been born into a family that severely restricted her siblings’ food and water intake, at least in part, for the purpose of reducing the amount of diapers they had to clean up. When the minors attempted to sneak food or water, they were placed in restraints for long periods of time. Parents had fed one of Minor’s older siblings goat’s milk instead of formula or breastmilk. Several of Minor’s siblings had been deemed malnourished; one was anemic, another underweight, and yet another severely underweight. Despite two years of services directed at remedying these problems, it was determined that Mother continued to lack insight for effective, basic parenting.

Mother had completed a psychological evaluation in April 2016, from which it was concluded that she could not benefit from services due to her inability to learn and apply skills needed for effective parenting. Mother’s initial counselor in the current case noted her attendance was inconsistent and some of her comments were “‘concerning’”; the counselor believed Mother would benefit from a higher level of counseling, but Mother declined. Mother stated that God cured her children who had autism and she was going to get her children back through God.

The psychologist who evaluated Mother noted that “the indications are that she is not benefiting from services at present.” The psychologist reported: “‘While [Mother] has the basic ability to benefit from services, the probability is high that she won’t until she makes a solid decision that she needs to make [a] change in her life style and coping style and I perceive no such change [is] desired at the current time, which means basically that she will also lose child number [seven].”

Thus, despite the quantity of services in which Mother participated, the quality of those services was lacking in that Mother was not benefiting from them. Moreover, in evaluating the quality of those services, the court properly determined that it had to consider Mother’s efforts within the context of the long-term problems which had led to prior removals, terminations of reunification services, and terminations of parental rights. The juvenile court’s finding that Mother had not made reasonable efforts to remedy the problems which led to removal is supported by substantial evidence.

B. Best Interest

Mother contends the court erred in ruling reunification services would not be in Minor’s best interest. We disagree.

“Pursuant to section 361.5, once the juvenile court determines that a parent is described by subdivision (b)(10) [and (b)(11)] of that statute, it shall not order reunification services for that parent ‘unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.’ (§ 361.5, subd. (c)(2).) ‘“The concept of a child’s best interest ‘is an elusive guideline that belies rigid definition. Its purpose is to maximize a child’s opportunity to develop into a stable, well-adjusted adult.’”’ [Citation.] Nevertheless, precedent supplies certain relevant considerations when making a best interests determination. For instance, ‘[t]o determine whether reunification is in the child’s best interest, the court considers the parent’s current efforts, fitness, and history; the seriousness of the problem that led to the dependency; the strength of the parent-child and caretaker-child bonds; and the child’s need for stability and continuity.’ [Citations.] It is the parent’s burden to prove that the minor would benefit from the provision of court-ordered services. [Citation.] We review a juvenile court’s best interest determination in this context for abuse of discretion. [Citation.]” (Jennifer S., supra, 15 Cal.App.5th at pp. 1124-1125 [juvenile court acted within its discretion in finding reunification services not in the minor’s best interest where the parents’ efforts to ameliorate the problems were recent and the minor was of a young age].) “[T]he fact ‘[t]hat there is evidence in the record supporting the opposite finding . . . does not mean the court abused its discretion in finding it was in [the minor’s] best interests to reunify with [his mother].’ [Citation.]” (Id. at p. 1126.)

Here, Mother failed her burden of proving Minor would benefit from reunification services. As discussed above, despite over two years of services directed at addressing the issues with Mother’s feeding of her children, Mother was still deemed not to have benefited from those services. The court did not abuse its discretion in finding that more services would benefit neither Mother nor Minor. Moreover, the psychologist specifically noted Mother “made no mention of loving or needing her children or anything else that would provide her with the motivation to increase her functioning level.” At the time of the order, Minor was only seven months old and had spent less than two months in Mother’s custody. The juvenile court acted within its discretion in denying Mother reunification services.

III. DISPOSITION

The petition is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

CODRINGTON

J.

RAPHAEL

J.