Opinion
F077233
06-15-2018
ALICE V., Petitioner, v. THE SUPERIOR COURT OF TULARE COUNTY, Respondent; TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.
Alice V., in pro. per., for Petitioner. No appearance for Respondent. Deanne H. Peterson, County Counsel, and Carol E. Helding, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JJV070837A)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Robin L. Wolfe, Judge. Alice V., in pro. per., for Petitioner. No appearance for Respondent. Deanne H. Peterson, County Counsel, and Carol E. Helding, Deputy County Counsel, for Real Party in Interest.
Before Levy, Acting P.J., Detjen, J. and Ellison, J.†
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Petitioner Alice V. is the mother of now nine-month-old T.V., who was declared a dependent of the Tulare County Juvenile Court and is the subject of these original proceedings. Jose is T.V.'s father. At the conclusion of a contested dispositional hearing, the juvenile court denied Alice reunification services under Welfare and Institutions Code section 361.5, subdivision (b)(6)(A) (infliction of severe physical harm) and (b)(12) (conviction of a violent felony), and set a hearing pursuant to section 366.26 to select a permanent plan. Alice filed a petition, in propria persona, seeking an extraordinary writ to overturn the court's orders. (Cal. Rules of Court, rule 8.452.) We deny the petition.
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Jose did not file a writ petition.
PROCEDURAL AND FACTUAL BACKGROUND
These dependency proceedings were initiated in August 2017 when the Tulare County Health and Human Services Agency (agency) took then newborn T.V. into protective custody because Alice was convicted in 2010 of felony child abuse for starving her nieces and nephew and was facing similar recent charges for starving her stepchildren. Because the juvenile court's ruling in this case stems from Alice's history of physical abuse, we begin our factual summary there.
In February 2008, Alice was the guardian of her then five-year-old niece, Angel, and four-year-old twin niece and nephew, Michelle and Michael (the children), when she took them to the agency, stating she could no longer care for them. They were emaciated and losing weight, which she could not explain. Alice said the children ate a lot of food and their behavior was so bad they were kicked out of daycare and considered too dangerous to be around other children. She claimed all three children had reactive attachment disorder, Michael was autistic and depressed and Michelle was bipolar. She sought mental health services for them but did not like the proposed treatment plan. She said the children constantly stole food so she kept them in her room at night so she could hear them if they got up. Alice's biological children, then 11-year-old Kevin and her nine-year-old daughter, K.S., confirmed the children ate a lot and got up in the middle of the night to steal food. Kevin and K.S. were able to tell the social worker what they ate for their last few meals and said Alice fed the children if they were hungry.
The children were admitted to the hospital for malnutrition and dehydration. They were emaciated; their breast bones protruded under their skin, their abdomens were distended and their knees were larger in circumference than their thighs. Court appointed special advocates visited the children in the hospital and were shocked at their skeleton-like appearance. Michael and Michelle appeared the sickest. Michelle stated, "We can't go home because we stole food," as if they were bad and in trouble. She said they were given five grapes and three peanuts for dinner. If they stole food, they did not get to eat dinner. She was excited to go to a foster home because she would have food to eat and her own bed to sleep on. She said they used to have bunk beds, but Alice put the bunk beds in the garage waiting for a yard sale. The three children slept on the floor. Michael excitedly talked about Christmas because for Christmas they got sandwiches.
After a month in foster care, each child gained weight. Their treating physician attributed their weight loss to "failure to feed" after ruling out any possible medical cause. According to the doctor, Michael was so emaciated that he could have died within days to weeks had he not received medical attention. He stated, "It is now clear that [Alice] was not feeding these children and in fact starving them to death."
In April 2008, the juvenile court exercised it dependency jurisdiction over the children and, as to Michael and Michelle, found that Alice subjected them to severe physical abuse pursuant to section 300, subdivision (e). Alice waived reunification services and the court terminated the legal guardianship at her request. In June 2010, she was convicted of felony child abuse (Pen. Code, § 273a, subd. (a)) with special allegations of great bodily injury (Pen. Code, § 12022.7, subd. (d)) and sentenced to four years in prison. While in prison, Alice completed a number of classes including parenting, communications, relationship skills and anger management.
In January 2012, Kevin reported that Alice beat him with a belt and spatula for about 20 minutes when he was nine years old, leaving marks and bruises. There were also reports she starved him and K.S. and physically abused one or both of them on 10 to 15 occasions.
Alice was released from prison in July 2012. In August, she filed a motion seeking visitation with Kevin and K.S., then 15 and 13 years old, respectively. The children's father opposed her motion and submitted a letter from Kevin's therapist stating Kevin had been diagnosed with posttraumatic stress disorder (PTSD) as a result of abuse he personally experienced and witnessed by Alice. The family law court granted the father sole legal and physical custody and denied Alice visitation.
In 2013, Alice completed an 18-week parenting course and a 12-session cognitive behavior class while on parole.
In August 2014, Alice entered into a relationship with Jose, a widower and father of then eight-year-old T.V. (stepdaughter) and stepfather of 11-year-old J.K. (stepson) (collectively, the stepchildren). Jose and the stepchildren moved in with Alice not long after the relationship began and Alice began taking the stepchildren to the doctor and restricting their diets. She and Jose married in October 2015. By September 2016, the agency was investigating a referral that the stepchildren had lost a significant amount of weight and were stealing food from school because they were starving. Jose stated that in 2014, the stepchildren's doctors determined they were overweight, which caused elevated cholesterol and blood glucose levels. The doctors recommended a restricted diet. A pediatrician, however, reviewed the stepchildren's medical records and found no underlying medical reason to explain their significant weight loss or the need for a restricted diet. He stated the stepdaughter's weight decreased from the 50th to the 2nd percentile for her age. He said children do not usually lose weight at that stage of growth and development.
The investigating social workers also discovered the stepchildren were experiencing emotional abuse and other forms of physical abuse. They had no bed and slept on a mattress with a blanket and pillow. The only other furniture they had in their bedroom was a dresser. They had no toys because they were "bad." They were not allowed to play outside or have contact with their maternal relatives. Alice pulled them out of school because of their "bad behaviors" and taught them at home, even though there were no school records of such behavior. Alice and Jose punished the stepchildren by forcing them to perform flutter kicks and hold themselves in a push-up position. They also kept a "tally" system for infractions where each tally mark warranted a spanking. At the end of the day, Alice or Jose would spank the stepchildren according to the number of tally marks they received. The stepdaughter harmed herself by scratching her hands until they bled and picking at sores on her body. She was participating in therapy until her therapist gave her a snack, at which point Jose and Alice withdrew her.
On September 28, 2016, a social worker took the stepchildren into protective custody. Alice and Jose were charged with felony child endangerment with possible great bodily harm. In February 2017, the juvenile court exercised its dependency jurisdiction over the stepchildren, ordered Jose to participate in reunification services for the stepdaughter and set a section 366.26 hearing as to the stepson.
In August 2017, while facing criminal charges related to her abuse of the stepchildren, Alice gave birth to T.V. The agency detained T.V. at the hospital and filed a dependency petition, alleging Alice's severe physical abuse of the children and her and Jose's physical and emotional abuse of the stepchildren placed T.V. at a substantial risk of harm. The juvenile court ordered T.V. detained pursuant to the petition and the agency placed her in foster care.
The agency recommended the juvenile court deny both parents reunification services; Alice under section 361.5, subdivision (b)(6)(A), based on her physical abuse of the children and under subdivision (b)(12), based on her felony conviction for child abuse. The agency gave Alice referrals for parenting, mental health counseling and child abuse intervention. Alice provided certificates of completion for anger management, parenting, cognitive behavioral anger management, and nurturing parenting education skills classes. She completed the courses from 2013 to 2015, just prior to and during the time she was parenting the stepchildren.
In September 2017, a social worker met with Jose and Alice during a supervised visit with T.V. Jose said he was participating in one-on-one therapy and wanted a relationship with the stepdaughter. He did not understand why she did not want to visit him. He and Alice claimed to be separated and no longer in a romantic relationship, although they loved each other. The social worker also met with the stepchildren who were happily living with their maternal grandmother. They did not understand why their father remained with Alice and had no intention of reunifying with him as long as Alice was in his life. In November 2017, Jose filed for divorce and requested joint legal and physical custody of T.V.
In February 2018, Alice and Jose submitted the matter of jurisdiction as to T.V., waiving their right to a contested hearing. The juvenile court adjudged T.V. a dependent child as alleged in the petition and found good cause to continue the dispositional hearing and set it as a contested matter.
In March 2018, the juvenile court convened the contested dispositional hearing. At a prior hearing, the court took judicial notice of its case files regarding the children and stepchildren. Alice was the sole witness.
Alice denied creating special diets for the children. She tried to help them gain weight by adding PediaSure to their diets and letting them eat peanut butter from the jar. The stepchildren were being treated for obesity and the stepdaughter's cholesterol was slightly elevated. She was following the doctor's treatment plan for them and the doctor never mentioned their weight loss was a problem. She admitted physically abusing the children but denied physically or emotionally abusing the stepchildren. She physically punished them and popped the stepdaughter on the lips but did not consider it abuse. When asked whether forcing the stepdaughter to maintain a push-up position was painful, she responded, "I'm sure, yes."
Alice recently finished or was participating in classes about parenting wisely, child awareness, prevention, abuse and maltreatment and safe care. She was certified in cardiopulmonary resuscitation for infants, children and adults and was participating in mental health counseling twice a week. She and Jose were separated and had no plans to reconcile. She maintained her own residence, was self-employed and was facing two counts of felony child endangerment.
Alice regularly visited T.V. and had not missed any visits. She breast fed her during visitation and provided the foster parent with breast milk to give T.V.
The juvenile court denied both parents reunification services as recommended. As to Alice, the court found by clear and convincing evidence that she engaged in a pattern of physical abuse that caused the children severe physical harm, likening their physical condition to "Holocaust survivors" based on their photographs. The court also found that Alice inflicted serious emotional abuse on Kevin and K.S., citing Kevin's PTSD as a result of watching Alice physically abuse the children, which the court considered "torturous acts." The court found Alice inflicted similar abuse on the stepchildren and the tally marking as a form of punishment was cruel and torturous. Finally, the court did not believe Alice had learned anything from the classes she completed given her continuation of the abuse and did not find her testimony credible that she gave the children peanut butter and snacks.
The juvenile court set a section 366.26 hearing for June 29, 2018, and ordered that visitation remain as previously set.
DISCUSSION
Alice contends, in essence, the juvenile court erred in denying her reunification services because it gave too much weight to her felony conviction for child abuse and too little weight to evidence of her reformation.
As a general rule, when the juvenile court orders a child removed from parental custody, it must provide services designed to reunify the family. (§ 361.5, subd. (a).) "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. 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.' " (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1120.)
Here, the juvenile court denied Alice reunification services, having found subdivision (b)(6)(A) and (b)(12) of section 361.5 applied. Section 361.5, subdivision (b)(6)(A) applies where a parent inflicted severe physical harm as defined in that subdivision to the child or the child's sibling or half-sibling and the juvenile court makes a factual finding it would not benefit the child to pursue reunification services. Section 361.5, subdivision (b)(12) applies where the parent or guardian of the child has been convicted of a violent felony, as defined in subdivision (c) of section 667.5 of the Penal Code. A "violent felony" under Penal Code section 667.5, subdivision (c), includes "[a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7 ...." (Pen. Code, § 667.5, subd. (c)(8).)
On a challenge to the sufficiency of the evidence to support a denial of reunification services under section 361.5, subdivision (b), we review the record to determine whether there is substantial evidence to support the court's order denying reunification services. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) Where the juvenile court finds more than one statutory basis for denying a parent reunification services, we may affirm if there is sufficient evidence to support one of them. In this case, we conclude substantial evidence supports the court's order denying Alice reunification services under section 361.5, subdivision (b)(12) (subdivision (b)(12)). Therefore, we need not reach the issue as to section 361.5, subdivision (b)(6)(A).
Alice does not dispute that subdivision (b)(12) applies to her insofar as her conviction for child abuse as to the children constitutes a violent felony. Rather, she contends the juvenile court gave the evidence of her conviction too much weight. It is not a matter, however, of how much weight the court gave the evidence as it is a matter of whether the evidence invoked the application of the statute. When the plain language of a statute requires the court to rule in a particular way, the court is compelled as a matter of law to do so. Here, subdivision (b)(12) provides as relevant that "[r]eunification services need not be provided to a ... guardian ... when the court finds, by clear and convincing evidence, [¶] ... [¶] [t]hat the ... guardian of the child has been convicted of a violent felony, as defined in subdivision (c) of Section 667.5 of the Penal Code." The fact that Alice's conviction for felony child abuse with special allegations of great bodily injury constitutes a violent felony under section 667.5 of the Penal Code is undisputed. Consequently, the court had no choice but to apply subdivision (b)(12).
Further, once the juvenile court found subdivision (b)(12) applied, it was prohibited under section 361.5, subdivision (c)(2), from ordering reunification services for Alice unless it found by clear and convincing evidence that reunification was in T.V.'s best interest. Alice had the burden of proving that reunification would serve T.V.'s best interest. (In re S.B. (2013) 222 Cal.App.4th 612, 623.) She presented evidence that she cared for T.V. by breastfeeding her and completed many classes designed to improve her parenting skills. However, the juvenile court can consider not only a parent's current efforts and fitness in determining whether reunification would be in the child's best interest, it can also consider a parent's history, including the gravity of the problem that brought the family to its attention. (In re Ethan N. (2004) 122 Cal.App.4th 55, 66-68.) Here, the juvenile court considered Alice's evidence but concluded that she had not changed or benefitted from any of her coursework; rather, she continued her pattern of subjecting children in her care to serious physical and emotional abuse, which placed T.V. at a substantial risk of harm. We conclude the juvenile court was correct in applying subdivision (b)(12) to Alice's circumstances and in finding that providing Alice reunification services would not serve T.V.'s best interest.
Section 361.5, subdivision (c)(2), provides as relevant here: "The court shall not order reunification for a ... guardian described in paragraph ... (12) ... of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child." --------
We find no error and deny the petition.
DISPOSITION
The petition for extraordinary writ is denied. This court's opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.
† Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.