Johanna E. v. Sup. Ct.

Filed 3/1/07 Johanna E. v. Sup. Ct. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

ORIGINAL PROCEEDING. Petition for extraordinary writ. (Cal. Rules of Court, rule 8.452). D. Zeke Zeidler, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Petition denied.

Donna Wright Bernstein for Petitioner.

No appearance for Respondent.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Liana Serobian, Senior Associate County Counsel, for Real Party in Interest.

INTRODUCTION

Petitioner Johanna E. (mother) is the parent of Brianna A. (born November 2004), who is a dependent of the juvenile court. Under California Rules of Court, former rule 38.1,^[1]mother filed a petition for extraordinary writ seeking review of the juvenile courts November 17, 2006 ruling ordering no child welfare services and setting a permanency planning hearing under Welfare and Institutions Code section 366.26.^[2] We conclude the juvenile court did not err and that substantial evidence supports its ruling. Accordingly, we deny the petition.

PROCEDURAL BACKGROUND AND FACTS

Mother, as well as real party in interest Los Angeles County Department of Children and Family Services (DCFS), set out the complete history of the juvenile court proceedings, which does not require repetition except when necessary to address the claims for extraordinary relief.

Seventeen-month-old Brianna A. was admitted to the hospital on April 19, 2006, because of a serious head injury. She was diagnosed with subdural hematoma and bilateral retinal hemorrhaging consistent with shaken baby syndrome. Brianna also had multiple bruises on both sides of her face and ears, and 15 red marks on her abdomen--all with different colors and in different stages of healing. In addition, she had free fluid in her stomach suggestive of possible blood in the stomach.

At the hospital were the 17-year-old mother, her 14-year-old boyfriend Lester C., and Desire V., Briannas alleged babysitter. The admitting physician stated the stories mother provided were inconsistent with Briannas injuries, marks, and bruises, and indicated physical abuse. The hospital social worker said she received conflicting stories from all three parties, and none reported witnessing how the injury occurred.

On April 24, 2006, DCFS filed a section 300 petition alleging Briannas injuries were consistent with inflicted trauma while under mothers care or that of a person designated by mother, whom mother knew or reasonably should have known was abusing the child. It was also alleged that on a number or occasions, mother provided inappropriate care for Brianna, failed to meet her regular medical and immunization needs, and had a violent relationship with her father. Brianna, who was still at the hospital due to her extensive injuries, was detained and placed in foster care. She was later placed with Norma A., the maternal grandmother. The juvenile court later granted mother monitored visits at least twice a week.

DCFS reports revealed mothers behavioral problems since she was 12 years old, as well as allegations that she neglected Brianna.^[3] Mother was admitted to a psychiatric hospital for having suicidal ideation when she was about 12 or 13 years old, after repeated attempts to cut her wrist with glass, a knife, or blade. She admitted using crystal methamphetamine and marijuana, and having a problem with alcohol. Mother was a chronic runaway since age 14. At first she left overnight, but then she left for weeks and months at a time. She was arrested on several occasions for truancy and once for petty theft. At age 15¹/2, mother stopped attending school and would come to the family home once in a while.

At age 16, mother began to live with her boyfriend, Jose A., and her paternal grandmother.^[4] Her relationship with Jose was violent. She became pregnant with Brianna and lived with her maternal grandparents during most of her pregnancy. She moved back with Jose once Brianna was born. She again went to live with the maternal grandparents in October 2005 when her relationship with Jose ended. Mother left the maternal grandparents home on December 23, 2005, and did not return. Brianna was left with the grandparents. Mother moved in with her new boyfriend, Lester C., and Lesters mother, Yadira C. Lester admitted to the social worker that he was a current user of crystal methamphetamine and marijuana.^[5] Mother did not inquire about Brianna, or otherwise provide for her care or needs.

On January 6, 2006, mother was arrested for truancy and returned home, but she left again the next day, again without Brianna. Maternal grandmother did not hear from mother until February 17, 2006. That day, maternal grandmother asked mother to leave Brianna in her care permanently if she was going to continue to remain unstable. Mother agreed.

Mother returned more than a month later for maternal grandmothers birthday, and a few days later, on March 28, 2006, came to take Brianna with her. The grandmother tried to convince mother to leave Brianna with her, but mother threatened to allege a kidnapping to the police. Less than a month later, Brianna was observed much thinner and bruised. Mother claimed Brianna kept losing weight and that the bruises were due to a fall. The grandmother believed Brianna was not safe in mothers care because she did not meet the childs basic needs.

Mother initially denied leaving Brianna with 14-year-old Lester on the day of her head injury. But her story was contradicted by Yadira, who indicated mother had left Brianna with Lester that night, and had done so before. Mothers story also contradicted Desires statement that said she arrived at the home on the evening of the incident after mother had already left Brianna with Lester.

Mother later admitted she went to a friends house to watch movies and left Brianna with Lester. After giving multiple conflicting accounts of the incident, even denying being home at the time of Briannas injury, Lester finally admitted to injuring Brianna by spinning her and throwing her up and down in a quick and jerking manner. When Brianna began to vomit, Lester telephoned Desire, who was the daughter of one of mothers friends. When Desire arrived, she shook Brianna in efforts to wake her. Brianna was then taken to the hospital, where Desire met mother for the first time. Desire decided to cover up as the babysitter to avoid Brianna being taken away from mother.

As to the fluid in Briannas stomach, mother said she caused it when she accidentally kicked Brianna in the stomach with her knee a few days before the incident. Mother gave different explanations regarding Briannas marks and bruises.

Mothers long-time friend, Mari, believed mother was careless with Brianna and thought the child should not be returned to her. She reported an incident where mother left Brianna alone in her stroller outside in the cold, without a blanket, for hours while mother visited with friends who appeared to be gang members. Brianna was shaking from the cold. Mari said that on another occasion mother left Brianna, who had a high fever, with a friend. Maternal grandmother had to pick up Brianna and take her to the hospital. In Maris opinion, Brianna was happy when in the care of maternal grandmother, and sad when with mother.

Although DCFS had provided mother with referrals, mother failed to enroll in a drug rehabilitation program, parenting classes, or counseling. Maternal grandmother had scheduled mother for counseling appointments with Kaiser Hospital in the past, but was unable to locate mother to inform her of the appointment dates because mother did not disclose where she was. Maternal grandmother also reported that after Briannas detention, mother visited Brianna only sporadically, but telephoned to inquire of her well-being.

The juvenile court sustained the petition under section 300, subdivisions (a), (b), and (e) during the adjudication hearing on August 3, 2006. The court also ordered that mother undergo a psychological examination under Evidence Code section 730 by Dr. Ronald R. Fairbanks, and continued the disposition hearing until Dr. Fairbanks filed his report. The hearing was rescheduled no fewer than three times (from September 1 to November 17) because mother consistently failed to appear for her evaluation.

Dr. Fairbanks conducted several clinical tests, including the Minnesota Multiphasic Personality Inventory (MMPI) which, according to Dr. Fairbanks, is the most reliable. The results indicated mother was naively defensive and that she did not have much emotional control. In sum, the results presented a profile indicating the person is depressed and resentful, that they act out socially in terms of their anger. She tends to blame others, in contrast to the way she presented in the interview, tends to have resentful demands and substance abuse is very likely. Passive dependency is typical of this kind profile and in general does not present as a positive descriptor of parenting. [Results] also indicate that [mother] has little or no emotional control over herself but she tends to withhold and not be open about issues that are important to deal with. [Other test results] also indicate she could have a substance abuse problem and at times bottles up irritation and anger to the point that she could be explosive at times. If she was the one that had the child at the time of this incident, this profile could explain what happened. That is, she became explosive. Overall, the MMPI is relatively negative regarding her adjustment.

Dr. Fairbanks concluded, This examiner cannot say that this is a positive evaluation. However, this examiner would recommend some tolerance for this young lady since she is still young. If she is motivated, she could possibly do some work and make improvements in the near future. [] . . . [] This examiner would note that getting the mother [into] the office for this evaluation was not easy. That in itself would imply that family reunification may not be successful, but this mother, the examiner would say, deserves an opportunity [to destroy] the plan herself rather than the Court or [DCFS] making a decision for her.

At the end of the contested disposition hearing on November 17, 2006, the juvenile court concluded that because it had sustained the petition under section 300, subdivision (e), the court now had to find that reunification services were likely to prevent reabuse or continued neglect in order to provide mother with services. (See  361.5, subd. (c).) The court concluded Dr. Fairbanks evaluation doesnt say that. [] [It] says the opposite. [Dr. Fairbanks] says theres not a high probability of success. Most of the . . . factual information in it[,] the diagnostic results in it[,] do not show a likelihood of services as preventing reabuse or continued neglect. It is only Dr. Fairbanks kind and caring heart that leans towards saying he thinks the mother should get reunification services, but none of that is because its likely that she could regain custody. [] Its because he hopes that she could regain custody, and hope is not the same as likely.

The juvenile court ordered no reunification services pursuant to section 361.5, subdivision (b)(5), and set the matter for a permanency planning hearing. Mother filed a timely writ petition challenging this ruling.

PETITIONERS CONTENTIONS

Mother contends the juvenile court erred in denying reunification services because the evidence indicated (1) she was not the person who severely injured Brianna and she is no longer living with Lester, and (2) Dr. Fairbanks report recommended reunification services. She also argues the court erred because the evidence showed Brianna was closely and positively attached to her. We disagree and deny the petition.

DISCUSSION

1. Standard of Review

The objective of the dependency scheme is to protect abused or neglected children and those at substantial risk thereof and to provide permanent, stable homes if those children cannot be returned home within a prescribed period of time. [Citations.] Although a parents interest in the care, custody and companionship of a child is a liberty interest that may not be interfered with in the absence of a compelling state interest, the welfare of a child is a compelling state interest that a state has not only a right, but a duty, to protect. (In re Marilyn H. (1993) 5 Cal.4th 295, 307.)

A juvenile courts denial of reunification and finding that reunification is not in a childs best interest is reviewed for substantial evidence. (In re James C. (2002) 104 Cal.App.4th 470, 482; In re Brook  C. (2005) 127 Cal.App.4th 377, 382; In re Ethan N. (2004) 122 Cal.App.4th 55, 65.) An appellate court must construe all evidence in the light most favorable to the finder of fact (In re Michael G. (1993) 19 Cal.App.4th 1674, 1676), and the juvenile courts exercise of discretion will not be disturbed except on a showing that the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1068; see also In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 [in the presence of substantial evidence, appellate justices are without power to reweigh conflicting evidence and alter a dependency court determination]; In re Ethan N., supra, 122 Cal.App.4th at pp. 64-65 [the court cannot reverse the juvenile courts determination, reflected in the dispositional order, of what would best serve the childs interest, absent an abuse of discretion].)

2. Substantial Evidence Supports the Denial of Services.

The juvenile court denied reunification services under section 361.5, subdivision (b)(5). Subdivision (b) provides, Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence: [] . . . [] (5) 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.^[6]

As one court has stated, In enacting section 361.5, subdivision (b), the Legislature has recognized that, notwithstanding the crucial role of reunification services when a minor is removed from the home, it may be useless under certain circumstances to provide services. [Citations.] Section 361.5 reflects the Legislatures desire to provide services to parents only where those services will facilitate the return of children to parental custody. The exceptions in subdivision (b) to the general mandate of providing reunification services demonstrate a legislative determination that in certain situations, attempts to facilitate reunification do not serve and protect the childs interest. [Citation.] [Citation.] (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137, citing In re Joshua M. (1998) 66 Cal.App.4th 458, 470.)

Section 361.5, subdivision (c) provides that the juvenile 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.

There was ample evidence before the juvenile to support its denial of reunification services. The social worker recommended denial of services because mother . . . deliberately and without concern for the child, Brianna, left her in the care, custody, and control of a fourteen[-]year[-]old boy who was immature and had behavioral problems. Mother knew or should have known that leaving the child in his care would place the child at grave risk of harm. To the minor Lester, the infant Brianna[] was merely a toy to spin about and throw up and down. . . . [M]other should have known how Lester would react to the child, should have observed other inappropriate behavior. . . . [] Further, the child suffered other injuries which apparently did not occur when the minor Lester was spinning the child and throwing her in the air. The child sustained trauma to her stomach, bruises about her body in different stages of healing, and red dots which depict broken blood vessels. It is highly likely [mother] physically abused the child based on her own admissions.

The social workers advice to the court is supported by mothers lifestyle and lack of responsibility toward Brianna. She consistently left others to care for Brianna, often for extended periods of time, without leaving any information as to her whereabouts. And, she left Brianna with Lester on at least two occasions. She knew, or should have known that this 14-year-old was easily angered and a current user of crystal methamphetamine and marijuana.

Also, contrary to mothers contentions, Dr. Fairbanks evaluation supports the juvenile courts denial of reunification services. Dr. Fairbanks reported mother had little or no emotional control over herself, that she could have a substance abuse problem, and that her anger could be explosive at times. He concluded his evaluation was not a positive one, and that mothers failure to timely submit herself for an evaluation indicated reunification services may not be successful. While Dr. Fairbanks ultimately recommended that mother be given reunification services, we must agree with the juvenile court that this recommendation appears to be based upon Dr. Fairbanks kind and caring heart rather than the diagnostic test results and his professional opinion. Those results and that opinion indicated that reunification services were not likely to prevent reabuse as mothers likelihood of adjustment was negative.

As DCFS correctly points out in its answer to mothers writ petition, Dr. Fairbanks recommendation that mother be granted services essentially focused on her motivation as the main factor in determining the likelihood services would prevent reabuse or continued neglect. But as already noted, the evidence before the juvenile court indicated mother consistently showed a lack of motivation and responsibility when it came to caring for Brianna.

Furthermore, the juvenile court did not err in denying reunification services under section 361.5, subdivision (b)(5) by virtue of the fact mother was not the person who actually inflicted Briannas severe head injury. In In re Joshua H. (1993) 13 Cal.App.4th 1718, the child was removed from his 17-year-old mothers care because of physical abuse by the mothers boyfriend. The court rejected a similar argument, concluding section 361.5, subdivision (b)(5) properly applied, and that the finding under section 300, subdivision (e) can be based upon the conduct of another abuser. (Id. at pp. 1731-1732.)

Finally, we reject mothers argument that the court erred in denying services because there was evidence, implied from the record, that she had a close and positive bond with Brianna. From October 2005, when Brianna was one about year old, it was the maternal grandmother who was the primary caretaker. It was after mother took Brianna from maternal grandmother that she was found skinny and with bruises, and then the head and stomach injuries took place. Mothers visits after Briannas detention were sporadic. While mother did testify to visiting Brianna daily, this was not until a month before the disposition hearing and seven months after Briannas detention. These visits during this final month do not demonstrate a close and positive bond between mother and Brianna. In short, there is no substantial evidence of any detriment to Brianna from the courts denial of family reunification services.

Accordingly, because we conclude substantial evidence supports the courts denial of reunification services, we deny the petition.

Disposition

The petition for an extraordinary writ is denied on the merits. This opinion is final forthwith as to this court under rule 8.264 of the California Rules of Court.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

BOLAND, J.

FLIER, J.

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^[1] As of January 1, 2007, rule 38.1 has been renumbered to rule 8.452.

^[2] All further statutory references are to the Welfare and Institutions Code.

^[3] DCFS received two prior referrals, in February and June 2005, alleging general neglect of Brianna by mother.

^[4] Jose A., Briannas father, is not a party to this proceeding. He is currently incarcerated in the California Youth Authority for attempted murder.

^[5] According to social workers, Lester, who was receiving special education classes, appeared to be hyperactive and developmentally delayed.

^[6] Section 300, subdivision (e) provides, in relevant part, that a child may be declared a dependent of the juvenile court if [t]he child is under the age of five years and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child. Mother does not challenge the juvenile courts finding of jurisdiction under this subdivision or its applicability in this case.