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Eric v. Superior Court of San Diego County

Court of Appeals of California, Fourth District, Division One.
Nov 7, 2003
D042617 (Cal. Ct. App. Nov. 7, 2003)

Opinion

D042617.

11-7-2003

ERIC A., et al Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Real Party in Interest.


Eric A. (the father) and T.A. (the mother) seek review of juvenile court orders terminating their reunification services and setting a hearing under Welfare and Institutions Code section 366.26.[] They contend the court erred in finding their son, Donovan A., would be at substantial risk if returned to their care and the mother contends the court erred in not continuing the hearing. We issued an order to show cause, the San Diego County Health & Human Services Agency (Agency) responded, and the parties waived oral argument. We deny the petitions.

FACTUAL AND PROCEDURAL BACKGROUND

On September 28, 2001, the Agency petitioned on behalf of five-month-old Donovan, alleging he had bilateral retinal hemorrhages, subdural hematomas and facial bruising which ordinarily would not occur except as the result of acts or omissions of the parents. On September 25 the father had been caring for Donovan while the mother was at work. He said he called an ambulance after Donovans eyes rolled back into his head and he became non-responsive.

Dr. Kathleen Dully examined Donovan at a hospital and found faded bruises on his chin, bilateral retinal hemorrhages and bleeding in his brain. She said there were two head injuries, one hours to days old and the other weeks in age. She opined the injuries were highly suspicious of violent abusive head trauma and Donovan was suffering from Shaken Baby Syndrome. The mother said she had not noticed bruises on Donovans chin and the father said he had not seen the bruises until paramedics placed Donovan in the ambulance. The father remembered that some days earlier he left Donovan unsupervised on a couch for 15 to 20 minutes and when he returned Donovan was on the floor. Both parents denied ever hitting Donovan. A babysitter, a hospital social worker and an outreach specialist from the Black Infant Health Program said they had never seen the parents act inappropriately with Donovan. The court ordered him detained.

The mother suggested that Donovans injuries could be the result of recent illnesses, but Dr. Dully opined they were not caused by illness or a fall from a couch. Two babysitters said Donovan never fell or was hit while in their care. One said the mother told her the father could sometimes be controlling. Another babysitter said the mother told her the father once yelled at Donovan to "shut up." Both parents denied injuring Donovan and said they would do whatever they needed to do for him to be returned.

On November 27, 2001, both parents submitted to the allegations of the petition and the court found them true by clear and convincing evidence. Donovan was placed in a confidential foster home. The court ordered the parents to undergo psychological evaluations. The psychologist who evaluated the father noted he smiled throughout the evaluation, even when he talked about losing custody of Donovan. The father tested in the low average intellectual range, has deficits with cognitive flexibility, concentration and attention and poor insight, poor judgment, poor frustration tolerance and poor impulse control. He denied being responsible for Donovans injuries. The psychologist recommended visits be supervised. The mothers evaluation stated she has poor resources for coping with stress and has risk factors including poor social support, poor behavioral insight, difficulty managing anger and minimizes problems. The psychologist recommended supervised visitation and individual therapy and referred her for a medical evaluation.

For the six-month review hearing the social worker reported the mother and the father continued to live together. The mother visited Donovan several times each week, participated in therapy and parenting classes and met with a Black Infant Health outreach worker. The social worker reported the mother was focused on Donovan and was gentle during visits. She reported the father was participating in his reunification plan. He had completed parenting classes, participated in the Black Infant Health outreach program and there was noticeable improvement in the way he handled Donovan. The foster mother noted that at visits the father appeared more interested in interacting with Donovan than the mother was. At the six-month review hearing on May 24, 2002, the court found the parents had made substantive progress with their case plans, but return would create substantial risk. It expanded supervised visitation.

In the 12-month review report the social worker recommended continued services. The parents had attended over 28 hours of parenting instruction, but the father had not had consistent therapy or shown progress in anger management or in taking responsibility for his actions. The social worker was concerned that the mother had not accepted the seriousness of what had happened to Donovan. The mothers therapist reported the parents had attended six therapy sessions and now said they had a stronger relationship and understood child safety and protection issues. The social worker indicated the father continued to need individual therapy to address his minimization, volatile behavior and anger management. At the 12-month hearing on November 22, 2002, the court found the mother had made substantive progress, but the father had not. It found returning Donovan to the parents posed a risk and continued him as a dependent child. On January 15, 2003, the court ordered unsupervised visits for the mother, but continued supervised visitation for the father.

For the 18-month review hearing, the social worker recommended terminating reunification services and setting a section 366.26 hearing. She reported the mother had participated in services and therapy, but the father had not taken the reunification process seriously. For example, when asked why he had not started an anger management program, he denied knowing it was required, but then smiled and said he knew it was part of his case plan. Also, he brought Donovans older half-brother to a therapy session even though he knew he was not supposed to be with him without supervision. The social worker said the parents continued to have appropriate visits. In a later report, however, she reported the foster mother told her the mother had not appeared for some visits and had made last minute cancellations for other visits during the past two months.

The father underwent a second psychological evaluation in March 2003. He continued to deny responsibility for injuring Donovan. The psychologist reported the father had many "lie responses" in his personality assessment. Explanations for this showing on the test include poor stress tolerance, denial and repression, a lack of flexibility and the need to appear psychologically healthy. The psychologist noted that people with this profile "may lash out in unanticipated, impulsive, and angry manners." He did not recommend reunification at the time, but suggested continued services beyond the 18-month date.

The mother also had a second psychological evaluation in March. She told the psychologist the father continued to deny responsibility for Donovans injuries and she did not know whom to believe. Her tests showed limited psychological insight, a depressive disorder and unresolved grief over the death of her grandmother. The psychologist cautioned that to the degree the mother feels depressed and isolated she could be dependent on her mate and minimize the risk to her children. He recommended she take advantage of continued services.

At the hearing on July 25, 2003, the mothers therapist testified he had explored safety issues with the mother. He opined she did not pose a risk and she understood Donovans special needs. The therapist also provided conjoint therapy for the parents and reported they had a good relationship that was improving. He had worked on stress and anger management issues with the father and saw no danger in returning Donovan to the parents care. He opined the parents had made progress since the time of their psychological evaluations in March.

A Black Infant Health Program specialist testified she worked with the parents and Donovan once each week and also facilitated their parenting class. She said when she first observed Donovan with the parents in January 2003, he did not interact with them, but walked around in a catatonic state and did not respond when they called him. She reported that as time went on he began to interact with them. She believed the father had gained a lot from parenting classes. She had never seen him get angry with Donovan and did not believe Donovan would be at risk if he were returned to the parents. Under cross-examination she said if it were proved that the father caused Donovans injuries, she would have major concerns about placing him in the fathers care and about the mothers lack of concern.

The social worker testified she was concerned by the mothers unassertiveness, dependent personality, depression and her statement that she did not know where she would go if she did not have the father. The social worker noted the fathers lack of initiative in not immediately starting an anger management program and missing some sessions. She opined this indicated he was not serious about reunification.

The mother testified about the services she had received and how she had benefited from them. She said she had recently missed five visits because of various problems and she always called if she had to miss a visit. She told of measures she would take to ensure Donovans safety and said she had no concerns about caring for him. She did not believe the father caused Donovans injuries.

The fathers therapist testified the father understood the seriousness of Donovans injuries and had made progress in dealing with stress. He opined the father did not pose a risk to Donovan.

The court found by clear and convincing evidence that returning Donovan to the parents custody would create a substantial risk of detriment. It found reasonable services had been provided and the parents had made substantial progress. It terminated court-mandated services and set a hearing under section 366.26. It ordered continued therapy for the father.

DISCUSSION

I

The mother and the father contend the courts finding that Donovan would be at substantial risk if returned to their care is not supported by substantial evidence. The mother argues it is unreasonable for the social worker to find risk in returning Donovan while allowing Donovans four-year-old half brother to remain in the home. She also argues the psychological evaluations are stale, incomplete and insufficient. The father argues the parents completed all aspects of their case plans and made substantial progress, the social workers concerns did not rise to the level of a substantial risk of harm, and while he did not formally admit to injuring Donovan, he completed all services designed to address the risk.

A reviewing court must uphold a juvenile courts findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.)

"[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also `. . . view the record in the light most favorable to the orders of the juvenile court." (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.App.3d 337, 340.) The appellant bears the burden to show the evidence is insufficient to support the courts findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

There was substantial evidence that returning Donovan to the parents care would create a substantial risk. Although the parents made substantial progress on their reunification plans, the psychological evaluations and the social workers opinion show return to the parents continued to pose a substantial risk. The March 2003 psychological evaluations were recent enough for the court to rely on them in making its decision. The mothers evaluation, conducted on March 19, 2003, states she said the father continued to deny that he was responsible for Donovans injuries and she did not know whom to believe. She also testified she believes he did not cause the injuries. The psychologist noted the mother had said the father is a controlling person and he had screamed at her and slammed doors. The psychologist was concerned that the mother exhibited symptoms of depression and, if she felt depressed and isolated, might rely on the father, putting the children at risk.

The psychological evaluations of the father reported he denied responsibility for injuring Donovan and did not acknowledge that Donovan had permanent injuries or any special needs. The father had problems with anger management, and on the assessment showed a significant number of "lie responses." The psychologist stated this could call his honesty into question or could be due to the excessive use of repression and denial, lack of flexibility, and poor tolerance for stress. The psychologist said one aspect of the fathers profile could suggest a low frustration tolerance, a finding often present in cases of child abuse. The psychologist did not recommend reunification at that time.

The social worker opined returning Donovan to the parents care would create a substantial risk based on his young age, the severity of his injuries, the parents not acknowledging responsibility for the injuries and the mothers dependence on the father. Although the father had not acknowledged that he injured Donovan, he was the only person present when Donovan was injured and taken to the hospital. The safety plan for the father, which the parents both signed, included this statement:

"I have not accepted nor admitted to shaking my son, Donovan. However, I admit having a problem controlling my anger and I realize that I must take responsibility for my action or lack thereof, because my son was left alone in my care at the time(s) of the shaken baby allegations."

The court stated it was firmly convinced the father had caused Donovans injuries, noting he had been injured on two separate occasions, he was injured when in the fathers care, the father had anger management problems, had yelled "shut up" at Donovan and had a controlling personality. The court was entitled to rely on the psychological evaluations and the social workers opinions. Substantial evidence supports the courts finding of risk.

II

The mother asserts the court erred by not continuing the 18-month review hearing to allow further services under section 352. She argues the exceptional circumstances in the case warranted a departure from the statutory mandate of 18 months of reunification services.

The court may extend services beyond the 18-month hearing date only in an extraordinary case. (Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377.) Here, the mother did not ask for services beyond the 18-month date. Instead, she requested if Donovan were not returned that the court continue the matter for three weeks to allow for an updated psychological evaluation on the question of risk. Moreover, services already had been provided for 22 months from the date of Donovans detention on September 28, 2001 to the 18-month review hearing on July 25, 2003. The parents received reasonable reunification services during this long time period, the father continued to deny responsibility for inflicting the severe injuries and the mother continued to profess that Donovan would be safe in the home. The mother has not shown error in the court not continuing services.

DISPOSITION

The petitions are denied.

WE CONCUR: McCONNELL, P. J., HUFFMAN, J. --------------- Notes: All statutory references are to the Welfare and Institutions Code.


Summaries of

Eric v. Superior Court of San Diego County

Court of Appeals of California, Fourth District, Division One.
Nov 7, 2003
D042617 (Cal. Ct. App. Nov. 7, 2003)
Case details for

Eric v. Superior Court of San Diego County

Case Details

Full title:ERIC A., et al Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY…

Court:Court of Appeals of California, Fourth District, Division One.

Date published: Nov 7, 2003

Citations

D042617 (Cal. Ct. App. Nov. 7, 2003)