Opinion
E070293
09-27-2018
In re T.G., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. B.M., Defendant and Appellant.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Pamela J. Walls, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J274161) OPINION APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Pamela J. Walls, Deputy County Counsel for Plaintiff and Respondent.
Defendant and appellant B.M. (mother) is the biological mother of T.G. (minor; a boy born Jan. 2017). Mother's sole issue on appeal is that the juvenile court abused its discretion in denying her reunification services.
FACTUAL AND PROCEDURAL HISTORY
T.G., Sr. (father) and mother had joint custody of minor. Mother's boyfriend, N.B., lived with mother.
On December 15, 2017, minor was transported by ambulance to Loma Linda University Medical Clinic due to having a skull fracture. Earlier that day, T.G. had been seen at Barstow Community Hospital after having a fall while in mother's care. There, it was discovered that minor had multiple skull fractures and a scalp hematoma. The doctors found minor's injuries to be consistent with non-accidental trauma. Moreover, a fracture to minor's left leg was discovered. It was healing and thought to be at least 10 days old.
On December 19, 2017, the San Bernardino County Department of Children and Family Services (Department) filed a child dependency petition on behalf of minor pursuant to Welfare and Institutions Code section 300, subdivisions (a), (b), and (e). The petition alleged that minor's injuries were not consistent with parents' statements and father had an unresolved substance abuse problem.
All statutory references are to the Welfare and Institutions Code unless otherwise provided.
At the detention hearing, the juvenile court found a prima facie case existed and detained minor. He was placed with his paternal great-aunt.
In the jurisdiction/disposition report dated January 11, 2018, the Department recommended that neither parent be offered reunification services. Minor was placed with a relative, Ms. C.
Mother stated that she never left minor alone with N.B., but minor had been watched by several relatives during weekday working hours. Mother did not have a good relationship with the paternal grandparents or with father.
Father did not notice any injuries. He stated that the paternal grandparents cared for minor on Fridays because father resided with them.
Mother stated that she and father separated in April of 2017 because father drank one or two drinks of hard liquor daily. Mother would not permit father to be around minor when he drank. Father admitted his drinking addiction and agreed to enter rehabilitation. Mother, however, did not know whether father entered or completed any rehabilitation program. Father admitted his drinking history to the social worker and denied any current substance abuse issues. Father attended AA 12-step meetings. However, father admitted to drinking two beers on December 28, two days prior to the interview with the social worker. Father only attended AA meetings because mother wanted him to attend; he had no need for the meetings. At the end of the meeting with the social worker, father became aggressive, raised his voice, and stated that he did not want to be accused of any crimes. Father left the room. He called 20 minutes later to apologize.
Father stated that he attempted to enter substance abuse treatment services but did not attend. He failed to give a reason for not participating in services. The social worker opined that father "is still struggling with his alcohol addiction despite attending Alcoholics Anonymous meetings, as he continues to partake in drinking alcohol."
A paternity test confirmed that father was minor's biological father.
On February 21, 2018, the Department filed "Additional Information to the Court." In the report, the social worker noted that she spoke with Dr. Egge of the Children Assessment Center on January 12, 2018. Dr. Egge opined that because of the advanced healing, the cause of minor's leg fracture could not be determined; however, he noted that neither parent sought medical attention for the injury.
The report noted that minor's maternal great-grandmother, R.T., stated the foot injury looked like a burn and mother stated that it was caused by minor's socks. R.T. never noticed the leg injury. The paternal grandparents stated that mother told them the marks were caused by the Velcro on minor's shoes.
The police report indicated that a nurse at Barstow Community Hospital did not suspect child abuse. The treating physician at the hospital treated minor for a "fall injury." Dr. Siccama from Loma Linda, however, opined that minor's skull fractures were caused by either a crushing injury or multiple impacts. A skull reconstruction was necessary for further information but the injuries were highly suspicious and consistent with abusive head trauma, and not consistent with a fall. The sheriff's investigating officer did not think minor could pull himself out of the crib and, although the couch was lower to the ground, N.B. told the deputy minor was not able to climb up on it. Mother told the investigating officer that the red mark on minor's foot was caused by the Velcro on minor's shoes.
Father's attorney had a psychological evaluation of father prepared on February 7, 2018, by Robert E. Brodie, Ph.D. Father reported his substance abuse history as consisting of frequent marijuana use starting at age 14 but he has not smoked marijuana for four years; the marijuana use interfered with his job security. Father started drinking daily at age 21. He never considered his drinking to be a problem but reduced his drinking when he learned that he was going to become a father. Father significantly reduced his alcohol consumption and only drank on special occasions, or when going out with his girlfriend. Father did not believe that he needed substance abuse treatment and did not think AA meetings were for him because he could not relate to the other people attending the meetings. Father and mother drank alcohol together two to three days a week. When minor was born, mother and father ended their relationship. Father believed the social worker thought father was under the influence when he was initially interviewed. Father admitted to drinking heavily the night before because he had found out about mother's arrest and dealt with it incorrectly. Father admitted consuming alcohol three or four times during the previous two months. Father always believed that mother was a great parent and did a great job. Father wanted to find out what happened and hoped that mother would get the help she needed. Dr. Brodie believed that father would benefit from treatment.
On February 27, 2018, mother's counsel indicated that mother was visiting minor two times a week, supervised by the paternal great-aunt with whom minor was placed. Mother requested additional visits. The court did not order an increase in visits but authorized the Department to use its discretion to increase visits if appropriate. The court stated that the injuries were serious, caused by physical abuse, and parents failed to accept responsibility, which greatly concerned the court.
In an April 9, 2018, addendum report, the Department recommended changing its prior recommendation by offering reunification services to father, but not to mother.
Mother indicated that minor did not show signs or concerns of injuries while in father's custody.
Mother was engaging in her service plans and mother's counseling progress report dated March 27 indicated that mother "has made excellent progress in sessions." On March 29, the social worker was informed that father had "not actively engaged in his service plans as he has refused to attend his out-patient groups, individual and parenting classes. It was also reported that after the service coordinators have given the father different options for times and dates of classes, the father continues to refuse services during this time."
At the April 9, 2018, jurisdiction/disposition hearing, father's counsel had an agreement with the Department to make some language changes to the petition but presented no affirmative evidence. The Department agreed to amend the petition to indicate that the injuries occurred while minor was in the care and custody of mother. The only count sustained against father was his substance abuse. Mother's counsel objected to the amendments, but called no witnesses and wished to proceed by argument only.
The juvenile court reviewed the audio recordings made by law enforcement.
Mother's counsel asked the court to consider whether the acts that caused the injuries were intentional or deliberate, and whether or not they resulted in serious injuries. Mother had always stated that "this was an accident from the beginning." Moreover, minor was cared for by many different relatives, any of whom could have caused the healing fracture of the tibia, especially when the date of the injury was unknown. Mother conceded that her child fell out of the playpen while in her care, and the resulting injuries were serious.
The court acknowledged that it only had one doctor's opinion and nothing to contradict that opinion. The court was very concerned about the leg fracture And "at first look there is no way to tell in whose care that occurred or how that was done which is why the Court was so careful initially regarding placement, but now that [the court] had an opportunity to see everyone's statements, again [the court was] concerned about that and believe that that did occur in the care and custody of the mother." The paternal family was not notified of minor's head injuries until almost 10:00 a.m., which was consistent with trying to hide what actually happened. Mother's explanation of minor climbing out of the playpen was not credible. The court did not understand why, if mother were not the perpetrator, she did not say anything negative about her live-in boyfriend. The court then sustained the petition with the exception of finding that mother did take reasonable precautions regarding father's drinking when she went to the family court and raised that concern. The court found by clear and convincing evidence that minor was in mother's care when the injuries were sustained, which supported the (e) count.
Regarding disposition, the court would not place minor with a paternal relative where father resided. Therefore, father told the court he would relocate. Mother objected to placement with the paternal relatives due to animosity between the maternal and paternal families. Mother requested that minor remain with his paternal great-aunt. The Department's attorney agreed that there was no reason to move minor.
Mother called social worker Senait Eyasu as a witness. Eyasu provided counseling and parental referrals to mother. Mother completed seven of 12 parenting classes. Mother was progressing and participating in her services, but she failed to admit harming minor. Eyasu did not agree with mother's therapist who opined that there was no risk for mother to be with minor unsupervised. Mother did not benefit from parenting classes because "she still continues to not take any sort of accountability for the injuries that were sustained in her care." Eyasu did not know that mother had been arrested until later in the case, and did not know if any admission by mother could be used against her in her criminal proceeding. Eyasu, however, testified that if mother admitted to injuring minor, she could then benefit from counseling. Mother had two separate one-hour visits a week for the past five months; mother had been appropriate during visits. Eyasu conceded that minor and mother shared a bond and that mother would remain in minor's life. Eyasu testified that it would not benefit minor if mother was given services. Eyasu opined it would be detrimental to minor if mother received services because mother had not admitted to being responsible for minor's injures. Eyasu explained that if mother were given services and reunified with minor, but refused to admit she caused the injures, "who's to say this will happen again in her care." A parent acknowledging responsibility for their child's injuries will prevent future reabuse.
The juvenile court found father to be the presumed father and that minor had to be removed from parents' custody due to a substantial risk of future danger. The juvenile court found that mother's refusal to take responsibility for the severe non-accidental injuries would not likely prevent reabuse if reunification services were to continue for mother. The court also found that minor had suffered severe physical abuse while in the custody of mother. Because minor was a child under the age of five who suffered severe physical abuse, the court ordered no reunification services for mother under section 361.5, subdivision (b)(6)(A). The court also found that denial of services would not be detrimental to minor. The court did not doubt that minor and mother shared a bond. The court, however, received no information that minor was doing poorly out of mother's care or that he suffered due to the removal. Therefore, the court ordered that mother not receive reunification services. Moreover, although mother would not be receiving reunification services, the court found that it would not hinder the quality of her visits. The court left mother's visitation at two times a week for one hour. The Department was given authority to liberalize the frequency and duration of mother's visits.
The court set a six-month review hearing pursuant to section 366.21, subdivision (e), for October 9, 2018.
On April 9, 2018, mother filed a timely notice of appeal.
DISCUSSION
A. THE COURT PROPERLY DENIED REUNIFICATION SERVICES TO MOTHER
Mother does not challenge the jurisdictional findings of the court in this appeal, including the section 300, subdivision (e), finding that minor was "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." (§ 300, subd. (e).) Mother challenges only the juvenile court's order denying her reunification services. For the reasons set forth post we affirm the juvenile court's order.
1. STANDARD OF REVIEW
"We affirm an order denying reunification services if the order is supported by substantial evidence." (In re Harmony B. (2005) 125 Cal.App.4th 831, 839.) " 'In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.' " (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 600 (Francisco G.).)
2. THE COURT PROPERLY DENIED SERVICES
Section 361.5, subdivision (b), "sets forth a number of circumstances in which reunification services may be bypassed altogether. These bypass provisions represent the Legislature's recognition that it may be fruitless to provide reunification services under certain circumstances." (Francisco G., supra, 91 Cal.App.4th at p. 597.) "Section 361.5, subdivision (b) symbolizes the Legislature's recognition of the fact that it may be fruitless to provide reunification services under certain circumstances." (Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 750.)
"Family reunification services play a critical role in dependency proceedings." (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 845.) Even when jurisdiction is amply justified, as it is here, at the early stages of dependency, family reunification is the desired goal. Toward that end, parents are offered reunification services. "As a general rule, reunification services are offered to parents whose children are removed from their custody in an effort 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." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478; see § 361.5, subd. (a); In re William B. (2008) 163 Cal.App.4th 1220, 1227.) However, when it is shown "by clear and convincing evidence that a dependent minor falls under subdivision (e) of section 300, the general rule favoring reunification services no longer applies; it is replaced by a legislative assumption that offering services would be an unwise use of governmental resources." (Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 164.) Section 361.5, subdivision (b), "sets forth a number of circumstances in which reunification services may be bypassed altogether." (Francisco G., supra, 91 Cal.App.4th at p. 597.)
A juvenile court may deny reunification services under section 361.5, subdivision (b)(6)(A), when the court finds by clear and convincing evidence "[t]hat the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child , a sibling, or a half sibling by a parent or guardian, as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian." (Italics and boldface added.)
A court must make a two-prong finding in order to deny reunification services under this exception: (1) severe physical harm has been inflicted to the child by the offending parents; and (2) a factual finding that it would not benefit the child to pursue reunification services. (§ 361.5, subd. (b)(6)(A).) "Severe physical harm" includes "deliberate and serious injury inflicted to or on a child's body." (§ 361.5, subd. (b)(6)(C).)
In this case, there was evidence that mother had minor in her custody when he suffered severe injuries, including multiple skull fractures. It was also discovered that minor was healing from a broken leg, which was thought to be at least 10 days old. Mother does not dispute these findings. In her opening brief, mother stated: "To be clear, Mother does not directly challenge the juvenile court's finding by clear and convincing evidence that [minor.] fell within the scope of subdivision (e) of section 300, and thus, that section (b)(5) of section 361.5 applies. Rather than dispute the applicability of section 361.5, subdivision (b), Mother contends the court misapplied the criteria set out in subdivision (c) of the statute." Here, although mother presented evidence of a bond between mother and minor, the "court shall not order reunification for a parent . . . unless the court finds . . . that reunification is in the best interest of the child." (§ 361.5, subd. (c)(2).)
Section 361.5, subdivision (i), further provides:
"In determining whether reunification services will benefit the child pursuant to paragraph (6) or (7) of subparagraph (b), the court shall consider any information it deems relevant, including the following factors:
"(1) The specific act or omission comprising the severe sexual abuse or the severe physical harm inflicted on the child or the child's sibling or half sibling.
"(2) The circumstances under which the abuse or harm was inflicted on the child or the child's sibling or half sibling.
"(3) The severity of the emotional trauma suffered by the child or the child's sibling or half sibling.
"(4) Any history of abuse of other children by the offending parent or guardian.
"(5) The likelihood that the child may be safely returned to the care of the offending parent or guardian within 12 months with no continuing supervision.
"(6) Whether or not the child desires to be reunified with the offending parent or guardian."
In this case, the juvenile court made the factual findings required by section 361.5, subdivision (b)(6), to deny reunification services. Section 361.5, subdivision (i) does not limit the court to consider only the factors described in that subdivision. The court "shall consider any information it deems relevant." Here, the court found that, although there was likely a bond between mother and minor, reunification services were not in minor's best interest because there was no indication that reunification would likely prevent reabuse.
Although the court's findings did not rely solely on mother's denial of the abuse, refusal to acknowledge abuse has been deemed a factor in upholding denial of reunification services. (See In re Madison S. (2017) 15 Cal.App.5th 308, 327, distinguishing In re Blanca P. (1996) 45 Cal.App.4th 1738 and relying on in re A.M. (2013) 217 Cal.App.4th 1067, 1074-1075.) The juvenile court specifically intended to "bypass" the general rule of providing reunification services and therefore, made the findings required by section 361.5, subdivision (b)(6) to apply the statutory exception to this rule. Here, as provided above, there was evidence that mother had control over minor when he suffered injuries, including multiple skull fractures. These injuries were determined to be non-accidental and "consistent with smothering and/or being crushed." The doctors also discovered that minor was healing from a broken leg that was thought to be at least 10 days old. The court stated: "There are two people in this case who noticed something wrong with the leg and that's the mother and [N.B.]. Both indicate the child dragging his leg which was not noticed by anyone on the paternal side of the family, and I believe that it is concerning that the child was not taken to the doctors."
In her reply brief, mother attempts to distinguish In re Madison S., supra, 15 Cal.App.5th 308, from this case. Mother noted that in Madison S., both the mother and father failed to accept responsibility for their son's injuries and neither were granted reunification services. (Id. at p. 328.) Mother points out that, in this case, "Father was granted reunification services and granting services to Mother would not impact [minor] in any negative way." Mother's analysis is not helpful because the juvenile court, in this case, found that mother was the perpetrator of the injuries, not father. Moreover, contrary to mother's statement, the trial court found that it was in minor's best interests to bypass services to mother. The court stated: "Not only has the Mother not accepted responsibility, but as far as any evidence before the Court, there's been no significant changes in the household constellation, and there's no contrary evidence other than this child was horrifically physically abused. [¶] . . . I have no doubt that the child had a bond with the mother, but I've received no information that he is doing poorly out of care , or that he is suffering due to the removal. I don't have any evidence that the bond was so close that it would be detrimental to not provide services. [¶] And additionally, again, with the lack of acknowledgment or appropriate responses also to the prior injuries, the Court does not find that services would be in the child's best interest."
"[A] court in exercising its discretion on the issue of best interests of the child has the 'ability to evaluate whether the parent will utilize . . . services and whether those services would ultimately inure to the benefit of the minor.' " (In re G.L. (2014) 222 Cal.App.4th 1153, 1166, relying on In re Jesse W. (2007) 157 Cal.App.4th 49, 66.) Here, although there is evidence mother embraced services or that mother and minor had a bond does not mean that the court abused its discretion in finding that it was in minor's best interests to deny reunification services to mother. We " 'will not disturb the court's determination unless the court has exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination.' . . . '[w]hen two or more inferences reasonably can be deduced from the facts, [we] have no authority to reweigh the evidence or substitute [our] judgment for that of the juvenile court.' " (G.L., at p. 1166, relying on In re Katelynn Y. (2012) 209 Cal.App.4th 871, 881.)
Based on the evidence provided ante, we cannot find that the juvenile court's decision was arbitrary, capricious or patently absurd. Hence, there was no abuse of discretion.
DISPOSITION
The juvenile court's jurisdiction findings and dispositional order are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. CODRINGTON
J.