Opinion
E034234.
10-28-2003
CHRISTINA M., Petitioner, v. THE SUPERIOR COURT OF THE COUNTY OF RIVERSIDE, Respondent; RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Real Party in Interest.
Mayumi Waddy for Petitioner. No appearance for Respondent. William C. Katzenstein, County Counsel, and Julie A. Koons, Deputy County Counsel for Real Party in Interest.
Mother has filed this petition pursuant to California Rules of Court, rule 39.1B, challenging an order denying reunification services and setting a Welfare and Institutions Code section 366.26[] hearing in regard to her infant child. We deny the petition, concluding that the denial of services was supported by substantial evidence and the department satisfied its duty to investigate the circumstances and advise on the likelihood that a denial of services would be detrimental to the child.
STATEMENT OF FACTS
When the child was eight months old the mother brought the child to a hospital complaining of lethargy and weight loss. While examining the child, the hospital discovered several nonaccidental injuries on the child, including bruises, pin pricks on the bottom of the childs feet, a subdural hematoma, and multiple leg fractures. Mother denied injuring the child, claiming that the child fell against the bars of the crib and fell onto a desk. Mother further claimed that she only left the child with the father and a maternal aunt, and that neither of those people would harm the child. The child was removed from mothers custody and the instant petition was filed.
Father was an admitted gang member with a violent criminal history whom mother was afraid of. Father indicated that he had last seen the child a couple days before mother took the child to the hospital. Father claimed that at that time, the child seemed healthy and was very active. Father adamantly denied injuring the child, saying that it was against the gang "code" to hurt children. A detective indicated that he had heard of such a code and that gang members do not normally hurt children. When asked who he thought was responsible for the childs injuries, father replied that mother often took the child to friends homes where there were other children and other people, but father insisted that mother seemed to be a good mother and always took care of the child.
During a monitored visit, mother said she just remembered that she also left the child alone with a friend. The friend indicated that mother frequently brought the child over, but usually stayed with the child. A few days before the child went to the hospital, the friend noticed that something was wrong with the child and told mother to take the child to the hospital. At that time, mother could not explain what was wrong with the child, but insisted that the child did not need to see a doctor.
A maternal aunt indicated that she had spent lots of time with the child, but only noticed problems a couple days before the child was taken to the hospital. At that time, mother claimed that she did not know what was wrong and felt there was no need to take the child to a doctor. The aunt called other relatives to complain about the childs condition in an effort to put pressure on mother to get the child to a doctor.
The maternal grandmother indicated that she saw the child just before the child was taken to the hospital and could tell that something was wrong. Although mother did not seem to feel that there was a problem at that time, mother knew she needed to take the child to the hospital eventually. After other relatives began complaining about the condition of the child, the grandmother took mother and the child to the hospital.
In the jurisdictional report, the social worker indicated that there were many strengths in this family, including a bond between mother and the child, a demonstrated willingness on mothers part to do the services necessary to reunify, and emotional support from the extended family. Nevertheless, the worker recommended a denial of services based on the severity of the childs injuries and mothers unwillingness to seek treatment for the child in a timely manner. Mother was subsequently charged with a felony relating to child abuse and incarcerated pending trial.
At the contested jurisdictional hearing, the court found the allegations of the dependency petition to be true and ordered a psychological examination for mother in preparation for the detention hearing. The psychologist concluded that mother was not capable of caring for the child due to physical and mental limitations. However, the psychologist also noted that mother was "highly and positively bonded" with the child. Mother told the psychologist that she suspected father as the abuser because he was the last person to baby-sit, but was afraid of him. At the detention hearing, the court denied services and set a section 366.26 hearing, leading to this writ.
DISCUSSION
The child was adjudged a dependent child under section 300, subdivision (e), which applies when "[t]he child is under the age of five 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." Reunification services need not be provided to a parent if the court finds by clear and convincing evidence that the child falls within section 300, subdivision (e) "because of the conduct of that parent." (§ 361.5, subd. (b)(5).) Thus, a court may deny reunification services to the parent who either personally abused the child, or knows or reasonably should have known that another person was abusing the child. (In re Joshua H. (1993) 13 Cal.App.4th 1718, 1732.)
Mother argues that the denial of reunification services under section 361.5, subdivision (b)(5) was not supported by substantial evidence because she did not physically abuse the child or know who was physically abusing the child. We disagree. Although it remains unclear who actually abused the child, the record reveals that mother, at a minimum, reasonably should have known the abuser. Mother was the primary caretaker and should have known who was the last person to be left alone with the child before the child began to display symptoms. And it appears mother actually did know that father had abused the child but was afraid to say anything. Thus, there was substantial evidence to support the denial of services.
Mother also argues that the trial court should have ordered reunification services pursuant to section 361.5, subdivision (c), which provides: "[T]he 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." We disagree with this contention as well. Although the evidence shows a positive attachment between parent and child, that does not alone prove that the failure to try reunification would be detrimental. The record also shows that mother was unable and possibly unwilling to protect the child, and that her physical and mental limitations made it impossible for her to benefit from services. Furthermore, the child was very young and mother was in jail at the time. Under those circumstances, any attempt at reunification would be a waste of time and potentially detrimental by delaying the inevitable separation.
Lastly, mother complains that the social worker failed to comply with her duty under section 361.5, subdivision (c) to "investigate the circumstances leading to the removal of the child and advise the court whether there are circumstances that indicate
. . . whether failure to order reunification is likely to be detrimental to the child." As we previously demonstrated, this complaint is unfounded. The social worker investigated and reported the circumstances, provided the psychologists report, noted mothers failure to protect the child and reluctance to obtain medical care, and advised against reunification services.
DISPOSITION
The petition is denied.
We concur: Hollenhorst, Acting P.J. and Richli, J. --------------- Notes: All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.