Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Nancy B. Williamsen, Judge. No. 515353
Maria Elena Ramos, for Petitioner
No appearance for Respondent.
John P. Doering, County Counsel, and Linda S. Macy, Deputy County Counsel, for Real Party in Interest.
Before Vartabedian, Acting P.J., Wiseman, J., and Cornell, J.
OPINION
Before Vartabedian, Acting P.J., Wiseman, J., and Cornell, J.
Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent court’s order issued at a contested six-month review hearing denying him custody of his son, M., terminating his reunification services and setting a Welfare and Institutions Code section 366.26 hearing to implement a permanent plan. We will deny the petition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
STATEMENT OF THE CASE AND FACTS
Petitioner and his wife, A., are the parents of M., the subject of this writ petition. On October 4, 2008, petitioner and A. took then seven-week-old M. to the hospital because he stopped breathing while being fed. He was admitted for observation. While in the hospital, he had repeated episodes of tonic posturing of the right arm and seizures. A brain scan revealed multiple areas of intracranial hemorrhage. He was transferred and admitted to Children’s Hospital in Oakland where doctors diagnosed him as having intracranial hemorrhage and multiple extensive hemorrhages in both eyes consistent with nonaccidental trauma and suggestive of shaken baby syndrome.
A. also filed a writ petition in case number F058825.
Neither petitioner nor A. could explain how M. was injured. Petitioner told an emergency response social worker that at approximately 5:30 a.m. on the day M. was admitted, he was feeding M. and as M. burped, he seemed to be gasping for air. Petitioner took M. to A. who held him and was able to stimulate breathing. However, they decided to take M. to the hospital. Petitioner stated the only other person who cared for M. was M.’s maternal grandmother who babysat for him the day before. However, M. was fine when petitioner picked him up.
A. confirmed petitioner’s account of the circumstances preceding their decision to take M. to the hospital. She said petitioner stayed home with M. while she worked and her mother watched M. for the first time on October 3rd, but there were no concerns. She stated, M. had never been handled roughly or dropped. Petitioner, A. and the maternal grandmother denied shaking M. and each stated they had no knowledge of anyone else shaking him.
The Stanislaus County Community Services Agency (agency) filed a dependency petition on M.’s behalf under section 300, subdivisions (a) (serious physical harm), (b) (failure to protect) and (e) (severe physical abuse), alleging M. suffered nonaccidental trauma while in the care of petitioner, A. and A.’s mother. The juvenile court ordered M. detained pursuant to the petition and placed him in foster care upon his release from the hospital.
In its jurisdictional report, the agency indicated that petitioner and A. still could not explain M.’s injuries and a child abuse expert at Children’s Hospital had ruled out any organic or metabolic causes for M.’s injuries. The agency recommended the court sustain the petition.
In early November 2008, the juvenile court convened but continued the jurisdictional hearing to be heard with the dispositional hearing later in the month. Meanwhile, the agency filed its dispositional report, advising the court that petitioner and A. believed medical problems during A. pregnancy with M. and during his birth caused the intracranial bleeding and retinal hemorrhages. They reported that a sonogram performed at 36 weeks gestation did not show portions of M.’s brain. The sonogram was repeated, resulting in a better view of M.’s brain but, according to petitioner and A., the doctors still could not visualize a full view of his brain. When the doctors did not repeat the sonogram a third time, petitioner and A. assumed any concerns the doctors may have had were minor.
Petitioner and A. also stated M. had decelerations of the heart during labor, requiring A. to have an emergency caesarean section. They later learned the umbilical cord was wrapped around M.’s neck. They also had concerns that pitocin, administered to induce labor, may have harmed M. and that his yellow eyes, red spot on his head and pale palms and bottoms of his feet may have been related to his injuries. In light of their concerns, the child abuse expert reviewed the medical records pertaining to petitioner’s pregnancy and M.’s delivery for any causal link. However, the expert told the caseworker that her review up to that point indicated M.’s injuries were the result of trauma.
The combined jurisdictional/dispositional hearing was continued to January 2009. Meanwhile, the expert provided a written report of her findings to the agency in which she stated none of the studies conducted (hematologic, metabolic and radiologic) or her review of past medical records suggested any underlying medical disorder that would account for M.’s acute brain injuries. In the absence of an underlying medical disorder or history of accidental trauma, she concluded his injuries were most commonly seen as the result of trauma and were “very concerning for inflicted brain injury.”
The combined hearing was continued several more times and scheduled for late February 2009. Meanwhile, petitioner consistently participated in the parenting program, which he completed in February 2009. According to his instructor, he asked insightful questions pertaining to M. and was open to learning positive parenting skills. In addition, during individual counseling, he expressed his acceptance during individual counseling that M. was the victim of injury, but was not certain how M. was injured or by whom. He was reportedly willing to take any measures necessary to secure M.’s safety and had four more counseling sessions. The caseworker received similar reports of A.’s progress in parenting classes and individual therapy.
In February 2009, on the date set, the juvenile court conducted the combined hearing at which it adjudged M. a dependent child pursuant to section 300, subdivision (b) and struck the allegations under subdivisions (a) and (e). The court also ordered a plan of reunification for both parents and set the six-month review for July 2009. The parents’ reunification plans were identical and required them to complete a parenting program and participate in individual counseling. In counseling, they were required to address that M. suffered nonaccidental injuries and that someone was responsible for inflicting his injuries. They were also required to demonstrate that they could protect him from further abuse. The court also ordered, as part of their reunification plans, a minimum of one unsupervised visit each week for up to six hours.
In May 2009, the juvenile court conducted an interim review hearing. In its report for the hearing, the agency reported petitioner and A. were participating in individual therapy. They acknowledged something happened to M. but did not know what and were adamant neither of them injured him. Petitioner did not concur with the medical finding of shaken baby syndrome and believed M.’s injuries could have been caused at birth. The counselor reported there was no history of domestic violence in the marriage and that the marriage was strong and supportive. She did not observe any “red flags” for safety issues or family dysfunction.
At the interim review hearing, it was determined petitioner and A. could benefit from further counseling so they could accept the medical experts’ opinions. They each had one additional session with the counselor during which they independently stressed they accepted the medical experts’ opinions that M. was nonaccidentally injured. However, they denied that M. was injured by them or any family member. They reported they no longer felt the need for further counseling. Consequently, there were no further counseling sessions.
In June 2009, during M.’s well-baby checkup, the examining physician noticed that his head circumference had decreased. Consequently, the physician ordered magnetic resonance imaging (MRI), which revealed no evidence of intracranial hemorrhage but revealed encephalomalacia (cerebral softening) in the left posterior portion of the brain, principally in the occipital lobe and, to a lesser degree, in the parietal lobe as well as mild atrophy of the cerebral cortex (outer layer), slightly more predominant on the left side. M. had also been determined to be developmentally delayed. As a result, he was referred to Valley Regional Medical Center (VRMC) for weekly intervention services.
Just prior to filing the six-month status review report, the caseworker met with petitioner and A. to discuss their thoughts regarding M.’s injuries. They would only say they believed what the medical experts said happened to M. but would not elaborate. Because they could not explain how M. was injured, the agency opined it would be detrimental to return M. to their custody and recommended the court terminate their reunification services.
Petitioner and A. challenged the agency’s recommendation and the six-month review was set as a contested hearing, which was litigated over nine partial court days in October 2009. During that time, the juvenile court trailed a motion by M.’s maternal grandmother that M. be placed with her.
Petitioner and A.’s counselor testified she provided parenting instruction and individual counseling to petitioner and A. Both parents accepted and understood that someone injured M. and took responsibility, as his parents, for the fact that he was injured while in their care, but they never identified a perpetrator. Petitioner told the counselor he and A. asked M.’s maternal grandmother about M.’s injuries and she explained what occurred throughout the day she cared for M. and they were satisfied that she did not injure him. Petitioner also told the counselor the grandmother was investigated and cleared.
The counselor further testified that in the May 2009 sessions with petitioner and A. after the interim court review hearing, neither parent really “process[ed]” anything, but just stated they accepted the medical opinion that M. was nonaccidentally injured. A. “believed” it because the court was going to require her to believe it. Until the parents had more information to share or were willing to further process the information, there was no reason to continue counseling. Had either parent been identified as the perpetrator, the counselor would have recommended additional appropriate services. She also testified petitioner and A. provided her a safety plan they developed, but she said it would not protect M. because it did not identify who injured him.
The infant development specialist for VRMC (specialist) testified that her reports indicated M. was diagnosed with Shaken Baby Syndrome and she attempted to discuss that with petitioner and A. several times, but they did not accept that he had that diagnosis. She believed they were confused about M.’s medical history. She also testified that she met with petitioner and A. in September 2009 shortly after they met with the neurologist to discuss the results of M.’s MRI. Petitioner and A. told the specialist that the neurologist stated the MRI did not reveal any problems. The following day, the specialist met with petitioner and A. at their home and asked to read the neurologist’s report. She told them that damage in the occipital and parietal lobes and atrophy were problems. To that, one of the parents replied, “But there’s no intracranial hemorrhaging.” During that meeting, the specialist explained to them what “atrophy” means. She also told them several times it was important they identify who injured M.
The specialist also testified M. had language delay and problems in motor planning and navigating space, which caused him to trip. She gave petitioner and A. books to help M. develop language and explained to them M.’s tripping could be the result of damage to the parietal lobe, which she explained controls depth perception and spatial awareness. Petitioner and A. told her they had not noticed him tripping.
The caseworker testified there were no further services she could provide petitioner and A. as long as the one who injured M. remained unknown. For the same reason, she did not believe that the safety plan petitioner and A. developed could be effective. She testified she was told M. had significant brain damage in the area that controls vision and the extent of the damage to his vision would not be fully known until he was older and possibly in school. She also testified petitioner and A. had weekly unsupervised six-hour visits with M. in their home and that M. enjoyed his visits. In addition, petitioner and A. attended M.’s medical appointments.
Petitioner testified he agreed it was the doctors’ opinions that M. was most likely injured by being shaken, but he did not know who shook him. He said M. was not out of his and A.’s sight during the evening he was injured, but his mother-in-law and brother-in-law were in the house in the three days prior to M.’s injury. He stated A. did not shake M. but he was “open to all possibilities” as to who injured M., even the possibility he injured M. On cross-examination, petitioner admitted not mentioning his brother-in-law’s presence when originally interviewed but thought he later told the social worker.
Petitioner denied being told by the specialist that someone had to admit injuring M. He said he did not know what “atrophy” meant and did not understand that M. had brain damage or he would have asked more questions as he understood that was serious. Nor did he understand the MRI results. His proposed safety plan would require him and A. to take classes on head injury, make sure the house was baby proofed, and make sure anyone around M. passed a criminal background check. He did not believe A. injured M.
A. testified she knew M. suffered nonaccidental trauma but did not know how he was injured and did not believe she, petitioner, or her mother injured him. She said her brother was not at her mother’s house the day her mother cared for M. She believed the medical experts who said M. was shaken, but she was not sure of that herself. She testified the neurologist explained the findings of the MRI to her. From the explanation, A. understood that M.’s head circumference was normal and he had brain atrophy and soft brain tissue, which had decreased in size “[a] little bit.” She did not know what “atrophy” meant and did not ask. She was not sure if “brain shrinking” was the same as “brain damage.” A. denied that the specialist told her M. had speech delay, sensory perception deficit, that he fell too much or explained shaken baby syndrome to her. Her plan for keeping M. safe was to make sure only she and petitioner cared for M.
In closing, counsel for both parents argued the court should find it would not be detrimental to return M. to their custody. In the alternative, they argued petitioner and A. were not provided reasonable services.
At the conclusion of the hearing, the juvenile court found petitioner and A. were provided reasonable services but failed to regularly participate or make substantive progress in them. The court also found it would be detrimental to return M. to their custody. Consequently, the court terminated their reunification services and set a section 366.26 hearing. The court also reduced visitation to a minimum of twice a month and granted the agency discretion as to the duration. The court also denied the maternal grandmother’s section 388 petition. This petition ensued.
DISCUSSION
A. Substantial evidence supports the juvenile court’s finding it would be detrimental to return M. to petitioner’s custody.
Petitioner contends the juvenile court erred in finding it would be detrimental to return M. to his custody. We disagree.
At the six-month review hearing, the juvenile court must return the child to parental custody unless the court finds, by a preponderance of the evidence, the child’s return would create a substantial risk of detriment to his or her safety. (§ 366.21, subd. (e).) The failure of the parent to participate regularly and make substantive in their court-ordered treatment program is prima facie evidence that return would be detrimental. (Ibid.) In assessing the risk of detriment, the court must review and consider the social worker’s report and recommendations and consider the efforts or progress demonstrated by the parent and the extent to which he or she availed himself or herself to the services provided. (Ibid.) However, ultimately, the court’s decision hinges on whether the parent’s progress eliminated the conditions leading to the child’s removal. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.) On review, we examine the juvenile court's finding of detriment for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)
Petitioner argues the agency failed to establish M.’s return to him would be detrimental. He points to his completion of his court-ordered parenting program and counseling and his fulfillment of his case plan objectives, requiring him to acknowledge that M. was the victim of nonaccidental trauma and that someone inflicted that trauma. This evidence, he contends, established that he regularly participated and made substantive progress in his court-ordered treatment plan. In addition, he points to the fact that he had unsupervised visitation with M. without incident and developed a plan to keep him safe.
The problem in this case is that M. was removed from petitioner’s custody because he was seriously injured while in the care of one of three people, including petitioner. In order to return M., it was necessary to identify the person responsible. Though petitioner was able to recite his case plan objectives, he could only say he was “open” to the possibility that any one of them, including him, injured M. Further, his plan for M. allowed for him and A. to care for M. even though either of them, according to petitioner, could be responsible for injuring him. Consequently, though he may have technically complied with aspects of his court-ordered treatment, he did not make substantive progress in providing for M.’s safety.
Further, this is not a case, as petitioner contends, where he was caught in the “confession dilemma” as that term is described in Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738. In that case, the appellate court considered the situation where the sole basis for establishing continuing detriment to the child was the fact that the father maintained that he never molested the child. In Blanca P., however, the detriment finding was made “without ever examining whether any molestation ever really occurred” (id. at p. 1742), and there was in fact substantial doubt about the matter. Here, in contrast, evidence of M.’s injury was not disputed. Consequently, Blanca P. is unavailing and we affirm the juvenile court’s finding of detrimental return.
B. Substantial evidence supports the juvenile court’s finding petitioner was provided reasonable services.
Petitioner contends the juvenile court erred in finding he was provided reasonable services. Therefore, it further erred, he argues, in terminating his reunification services. Specifically, he argues services were unreasonable because the caseworker did not disclose to him she believed either he or A. injured M. and did not tell him the perpetrator had to be identified in order for M. to be returned to parental custody. Additionally, he contends, the caseworker knew he did not understand the nature and mechanics of M.’s injuries and medical condition but made no effort to educate him. Finally, he claims it would have been useful had the court ordered him to undergo a psychological evaluation to determine if he had mental health or personality issues that prevented disclosure.
Where, as here, the child was under the age of three years when initially removed from parental custody and the juvenile court found it detrimental to return the child, the juvenile court may schedule a section 366.26 hearing unless it finds reasonable services were not provided or a substantial probability the child could be returned to parental custody by the 12-month review hearing. (§ 366.21, subd. (e).) In such a case, the court must continue services to the 12-month review hearing. (Ibid.)
In this case, petitioner was provided individual counseling with the specific objective of helping address that someone injured M. According to the specialist, she told petitioner several times it was important he and A. identify who injured M. Consequently, even if the caseworker did not tell him that, he knew both from the case plan objective and then directly from the specialist.
Further, nothing precluded petitioner from educating himself about M.’s medical condition. He attended the medical appointments and the caseworker testified she encouraged him to contact M.’s doctor if he had questions. The law presumes a parent is capable of complying with a reasonable case plan (In re Christina L. (1992) 3 Cal.App.4th 404, 415) and there is no evidence, on this record, that petitioner was not capable of understanding without further services.
Finally, there is no evidence petitioner had any mental health issues that would warrant a psychological evaluation or that such an evaluation would have furthered his ability to disclose the perpetrator of M.’s injuries. Rather, as is evident on this record, petitioner was provided the appropriate level of counseling to assist him in reunifying with M. He simply chose not to fully take advantage of it. We conclude substantial evidence supports the juvenile court’s finding petitioner was provided reasonable services.
C. Substantial evidence supports the juvenile court’s finding there was not a substantial probability M. could be returned to petitioner’s custody.
Petitioner contends the juvenile court erred in finding there was not a substantial probability M. could be safely returned to his custody after additional services. For that proposition, he cites his completion of his court-ordered services, his progress in accepting that M. was injured, accepting responsibility for not protecting him, the facts that the agency allowed him to care for M. unsupervised, and that he provided a safety plan.
Having found petitioner was provided reasonable services, the juvenile court had no choice but to terminate his reunification services unless, as discussed in paragraph B. above, it found there was a substantial probability M. could be returned to petitioner’s custody by the 12-month review hearing. (§ 366.21, subd. (e).) In assessing whether there is a substantial probability of return, the juvenile court must consider the parent’s capacity to meet the objectives of the case plan and provide a safe home for the child. (§ 366.21, subd. (g)(1)(C).) As discussed at length above, the juvenile court had little choice but to conclude M. could not be safe in petitioner’s custody until the one who injured him was identified and, given the lack of movement in that direction, there was no reason to believe continued services would resolve that dilemma.
In light of the foregoing, we affirm the juvenile court’s findings with respect to the reasonableness of services and probability of return as well as it orders terminating petitioner’s reunification services and setting a section 366.26 hearing.
D, The juvenile court did not abuse its discretion in reducing petitioner’s visitation.
Petitioner contends the juvenile court must provide ongoing visitation. Consequently, he asserts, the court’s order reducing visitation to twice monthly is an abuse of its discretion. We disagree.
The juvenile court is accorded broad discretion in fashioning visitation orders. Absent a showing of a clear abuse of discretion, we will not interfere with the exercise of that discretion. (In re Megan B. (1991) 235 Cal.App.3d 942, 953.) Since reunification was no longer the goal, it was appropriate for the juvenile court to fashion a new visitation order balancing petitioner’s right to ongoing contact with M. and M.’s best interest. (In re Shawna M. (1993) 19 Cal.App.4th 1686, 1690.) In this case, the visitation order not only provided ongoing visitation but visitation that could in effect, depending upon the agency’s exercise of its discretion, closely approximate that which petitioner was already receiving. We find no abuse of discretion.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.