Opinion
F079922
04-23-2020
In re G.M. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. J.M. et al., Defendants and Respondents; G.M. et al., Appellants.
Beth A. Sears, under appointment by the Court of Appeal, for Appellants. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent. Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and Respondent, J.M. Alexis C. Collentine, under appointment by the Court of Appeal, for Defendant and Respondent, George B.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 19CEJ300128-1, 19CEJ300128-2 & 19CEJ300128-3)
OPINION
APPEAL from an order of the Superior Court of Fresno County. Leanne Le Mon, Commissioner. Beth A. Sears, under appointment by the Court of Appeal, for Appellants. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent. Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and Respondent, J.M. Alexis C. Collentine, under appointment by the Court of Appeal, for Defendant and Respondent, George B.
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INTRODUCTION
Five-year-old G.M., two-year-old A.M., and eight-month-old J.B. (collectively, "minors" or "the children") were adjudged dependents of the juvenile court pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b). In addition, G.M. was adjudged a dependent pursuant to section 300, subdivision (i), and A.M. pursuant to section 300, subdivision (c). G.M., A.M., and J.B. have a common mother, J.M. (mother). George B. (father) is the presumed father of A.M. and J.B. Father was denied family reunification services pursuant to section 361.5, subdivision (b)(6) because the juvenile court found the children had been adjudicated dependents as a result of the infliction of severe physical harm to G.M. and that it would not benefit A.M. or J.B. to pursue reunification services with father. As to mother, the juvenile court found that though mother was involved in the infliction of harm to G.M., it would benefit the children for mother to receive reunification services. The juvenile court ordered mother to receive services.
All further undesignated statutory references are to the Welfare and Institutions Code.
G.M.'s alleged father could not be found for the proceedings and is not a party to this appeal.
Minors appeal the dispositional order that mother be provided reunification services. Minors contend the juvenile court erred by finding reunification services would benefit the minors because substantial evidence did not support such a finding. We affirm the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
On April 8, 2019, the Fresno County Department of Social Services (department) received a referral alleging physical abuse. The police department placed a section 300 hold on the children. Social workers responded to the motel where mother, father, and the children were staying. The police informed the social workers that father had been arrested due to a violation of a restraining order and an active warrant. G.M. had bruises on her buttocks and lower back, as well as healing abrasions to her buttocks. The police informed the social workers that G.M. reported that father had placed a sock in her mouth and duct taped her hands, feet, and mouth. G.M. said father pulled down her pants and underwear to spank her while mother held her down.
Mother told the social workers there had been past domestic violence between her and father. Mother reported the marks on G.M. were due to father "whipping" G.M. because G.M. picked on and pushed A.M. Mother defined "whipping" as spanking with an open hand. Mother said she did not know about the spanking and just found out about it after returning home from work. Mother said she and father had discussed not spanking G.M. anymore because it had left marks on a previous occasion before father participated in an anger management class. Mother admitted to holding G.M. down while father spanked G.M. in the past.
The children were placed in protective custody.
On April 9, 2019, it was reported that father had been calling mother from jail and telling her to lie about how G.M. received her injuries. At a "Team Decision Making" (TDM) meeting held on April 9, 2019, mother stated she allows father to discipline G.M. and that he used to discipline with a belt but has since stopped.
Mother said regarding the incident that G.M. was crying and it was mother's idea to put a sock in G.M.'s mouth to get her to be quiet. Mother was worried that if G.M. cried too loud they would get kicked out of the motel where they were living. Mother said father put tape over G.M.'s mouth because she was screaming too much. Mother said she held G.M. down while father spanked her seven times. Mother said the bruising was red in color and then the bruises turned purple. Mother said she had a part in the abuse because it was her idea to use the sock, and she held G.M.'s legs down. When the social worker asked mother if she is scared of father, mother cried and stated she is sometimes scared of father.
On April 10, 2019, the department filed a petition on behalf of the children alleging all three children came within the jurisdiction of the juvenile court under section 300, subdivisions (a) [serious physical harm] and (b)(1) [failure to protect]. The petition further alleged that G.M. additionally came within the court's jurisdiction under section 300, subdivision (i) [cruelty].
At the detention hearing on April 11, 2019, the juvenile court ordered the children detained from the parents. The court ordered reasonable supervised visits between mother and the children as well as between father and A.M. and J.B.
On April 17, 2019, minors were placed with their maternal great aunt, L.B., pending final resource family approval. G.M. stated she did not wish to visit or reside with father. She described father to her care provider as "a monster with white eyes." G.M. participated in a mental health assessment and was recommended weekly individual treatment. A.M. also participated in a mental health assessment and was recommended weekly family treatment with mother.
On May 13, 2019, a "Family Reunification Panel" (panel) was held to discuss the appropriateness of providing reunification services to the parents. Mother attended the meeting and stated she and father both had a part in hurting G.M. She stated she held G.M. down and did not stop father from hitting G.M. She stated there was a sock put in G.M.'s mouth and duct tape was placed on her arms, legs, and mouth. Mother reported that father has a criminal record for domestic violence and it was "her [mother's] fault" that father had a criminal history.
Mother said she began lightly tapping G.M. for discipline at age three, but when G.M.'s behavior increased at age five, she began spanking. Mother stated father had left bruises on G.M. in the past and she admitted to not protecting G.M. Mother said she tried to deny that she was afraid of father, but she truly was afraid of him. Father was controlling. Mother wanted the children to have two parents. When asked what she could have done differently, mother said she should have left and gotten the help she knew she needed. She said father isolated her and did not allow her to have friends, and it got to the point that he did not approve of her church or biological family.
Mother said there was a protective order against father because of an incident in 2017 in which father hit her excessively. Father told mother to lie with regard to the incident, but she told the police what happened. Father was arrested and bailed out. Father agreed to take classes and promised not to hurt her again if mother refused a protective order. Father blamed mother for the abuse. Father had been physically violent with mother since she was 17 years old. Father continued to be violent even after taking anger management classes and told mother the violence could be worse if he had not taken the classes. Mother's last contact with father was right before the TDM meeting in April 2019. Father had left aggressive voice mail messages for mother, but they eventually stopped.
Mother stated her plan to stay safe was to utilize church support and rely on law enforcement to protect her if she sees father. Mother was staying with her aunt's mother-in-law, which she described as a safe place.
The panel concluded section 361.5, subdivision (b)(6) applied to both parents because of the allegations of physical abuse on G.M. The panel, however, also concluded that pursuant to section 361.5, subdivision (c), ordering reunification services as to mother would be in the best interest of the children. The panel opined the prognosis for successful reunification with mother was good if she participates in services and engages with her case plan. The panel noted that mother had taken responsibility for her actions and had voluntarily sought out services, including mental health services and parenting services. G.M. had stated both that she wishes to return to her mother's care and that she did not wish to return to her mother's care. Mother had stated she believes G.M.'s attachment to her had suffered and that G.M. did not currently see her as a safe person. Mother indicated the desire to participate in therapy with G.M. to improve their relationship.
As for father, the panel opined the prognosis for reunification with him was poor. They noted father has a history of being the aggressor in domestic violence incidents and does not appear to have benefitted from services in the past for his violent behavior, as he continued to be physically abusive towards mother and G.M. after participating in an anger management program. Further, father had not taken responsibility for G.M.'s abuse and was at the time incarcerated and had not sought out services. G.M. had stated she does not wish to visit or reside with father. The department was concerned that father would continue to abuse the children because he had previously participated in a batterers intervention program and did not appear to benefit from the services.
The department's dispositional recommendation was to deny father and grant mother reunification services.
In June and July 2019, the department learned additional information about father's behavior that took place before the children's removal when mother was not home. It was reported that father would throw A.M.'s food in the garbage and make her eat out of the garbage. A.M. continued this behavior at her care provider's home and displayed other behavioral issues after visits with father, including hitting, kicking, biting children and adults, spitting, and throwing tantrums. It was also reported that father made G.M. smoke marijuana out of a pipe.
On August 7, 2019, the department filed a first amended dependency petition, which added an allegation that A.M. came within the juvenile court's jurisdiction under section 300, subdivision (c) [serious emotional damage] and another allegation under section 300, subdivision (i) for G.M.
Father and minors requested a contested jurisdictional and dispositional hearing. Minors filed a brief arguing mother should not receive services because of her participation in the abuse. At the contested jurisdictional/dispositional hearing held on August 27, 2019, minors maintained their objection to mother receiving services and submitted the issue on the documents.
Father called the social worker to testify. The social worker testified that mother's visits went well and no concerns were reported. Mother completed a parenting program, was submitting to random drug testing, and was scheduled to participate in mental health services.
The juvenile court deferred ruling to September 5, 2019.
On September 5, 2019, the juvenile court found all allegations in the first amended petition true. The children were adjudged dependents of the juvenile court. The juvenile court found pursuant to section 361.5, subdivision (b)(6) that father inflicted physical harm to G.M. and it would not benefit A.M. and J.B. to pursue reunification services with father, noting, among other factors, that he was the direct aggressor of the abuse on G.M.
As to mother, the juvenile court found the children would benefit from the court offering services to mother pursuant to section 361.5, subdivision (b)(6) and accordingly that the provision did not apply. The juvenile court noted minors' objection and that G.M. has some hesitation regarding reunifying with mother, but that it would benefit the children to reunify with mother so they could stay together. The juvenile court noted that mother was cooperative with the department and participating in services, including completing a parenting class and visiting with the children. The juvenile court noted mother would be able to reunify. The court ordered that mother receive reunification services, including a parenting class, a domestic violence assessment and recommended treatment, and a substance abuse assessment and recommended treatment.
DISCUSSION
Minors contend the juvenile court erred by ordering reunification services be provided to mother. We disagree.
The juvenile court shall order reunification services for a parent and child when a child is removed from a parent's custody. (§ 361.5, subd. (a).) There are exceptions to this general rule, commonly called "bypass" provisions set forth in section 361.5, subdivision (b).
Relevant here, section 361.5, subdivision (b)(6) provides that reunification services need not be provided to a parent when the court finds by clear and convincing evidence "[(1)] [t]hat the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of ... the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian ... and [(2)] the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian." (§ 361.5, subd. (b)(6)(A).)
In determining the second prong of the bypass provision, "whether reunification services will benefit the child pursuant to paragraph (6) ... of subdivision (b), the court shall consider any information it deems relevant, including the following factors: [¶] (1) [t]he specific act or omission comprising ... the severe physical harm inflicted on the child or the child's sibling or half sibling[;] [¶] (2) [t]he circumstances under which the abuse or harm was inflicted on the child or the child's sibling or half sibling[;] [¶] (3) [t]he severity of the emotional trauma suffered by the child or the child's sibling or half sibling[;] [¶] (4) [a]ny history of abuse of other children by the offending parent or guardian[;] [¶] (5) [t]he likelihood that the child may be safely returned to the care of the offending parent or guardian within 12 months with no continuing supervision[; and] [¶] (6) [w]hether or not the child desires to be reunified with the offending parent or guardian." (§ 361.5, subd. (i)(1)-(6).)
If the court finds section 361.5, subdivision (b)(6) applies, the court shall not order reunification services unless it finds by clear and convincing evidence reunification services are in the best interest of the child. (§ 361.5, subd. (c)(2).) It is the parent's burden to prove offering reunification services would be in the best interest of the children pursuant to section 361.5, subdivision (c). (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1124-1125.)
An appellate court reviews a court's findings under section 361.5 for substantial evidence. (In re G.L. (2014) 222 Cal.App.4th 1153, 1164.) We presume "in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
Minors' specific contention is that substantial evidence does not support the juvenile court's finding that reunification services to mother would benefit the children and thus constituted an abuse of discretion. Minors' contention is without merit.
The juvenile court's finding is supported by substantial evidence. Although mother participated in the abuse sustained by G.M., she was not, as the juvenile court pointed out, the direct aggressor. Mother was also a victim of father's violence and expressed that she was afraid of father. Mother took responsibility for her part in the abuse and had voluntarily began engaging in services. Mother stopped having contact with father and had a support system. There was no evidence A.M. suffered behavioral issues after visits with mother as she did after visits with father. A.M. was recommended to participate in family therapy with mother. Though G.M. expressed hesitancy in reunifying with mother, the juvenile court's conclusion that the possibility she could remain with her siblings outweighed this hesitancy was reasonable. Mother expressed a desire to participate in therapy with G.M. to repair their bond. This evidence supports the court's finding that reunification with mother would benefit the children.
Minors argue in part that the finding is not supported by sufficient evidence by listing each factor in section 361.5, subdivision (i) and highlighting the evidence unfavorable to mother. Minors include the circumstances of the abuse, the emotional trauma the children experienced, mother's acknowledgment that her bond with G.M. had been damaged, mother's "parenting style and unresolved relationship issues with father," and G.M.'s ambivalence towards returning to mother. In doing so, minors appear to be asking us to reweigh the evidence, which is not our role on review. The juvenile court expressly considered minors' objection and G.M.'s hesitancy in reunifying with mother. It also considered the severity of the abuse in denying services to father, referring to the circumstances as "shocking to the consci[ence]," as G.M. was held down with a sock in her mouth and her arms, legs and mouth being duct taped. The juvenile court clearly weighed all the evidence in determining it would benefit the children for mother to be provided reunification services. To the extent minors are arguing the court did not do so, we disagree and find no abuse of discretion. We are to view the evidence and make factual inferences in the light most favorable to the outcome below. In doing so, we find no error.
Neither of the cases minors cite in support of their argument, namely, In re Ethan N. (2004) 122 Cal.App.4th 55 (Ethan N.) and In re William B. (2008) 163 Cal.App.4th 1220 (William B.), alter our conclusion. In both cases, the juvenile court had found a bypass provision under section 361.5, subdivision (b) applied, and the issue on appeal was whether services were in the children's best interests pursuant to section 361.5, subdivision (c). In the present case, the juvenile court did not reach an analysis under section 361.5, subdivision (c) because it found subdivision (b)(6) did not apply. Nonetheless, minors contend the court's analysis in Ethan N. and William B. are instructive to our analysis. We disagree. The procedural stage of Ethan N. and William B. is different than that in the present case. In order to find the bypass provision in section 361.5, subdivision (b)(6) applies, the juvenile court must make a finding by clear and convincing evidence that the children would not benefit from reunification services. Once that finding is made, the burden shifts to the parents, and the juvenile court shall not grant reunification services unless it finds by clear and convincing evidence doing so is in the best interest of the children. Under the former analysis, the juvenile court operates from the general rule that reunification services must be granted unless an exception applies; under the latter, from the position that reunification services must not be granted unless it makes a separate finding it would be in the best interests of the children. Until the court makes a finding that a circumstance described in section 361.5, subdivision (b) applies, reunification services is still the preference. By the time the court has found a provision of section 361.5, subdivision (b) applies, the general rule favoring reunification services is "replaced by a legislative assumption that offering services would be an unwise use of governmental resources." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.)
Minors cite In re A.M. (2013) 217 Cal.App.4th 1067, 1075 to support their proposition that "At least one appellate court has equated the factors set forth in section 361.5, subdivision (i)—the factors a juvenile court should consider in determining whether reunification would 'benefit' the children pursuant to section 361.5, subdivision (b)(6)—with the factors a court should consider in making a best interest determination under section 361.5, subdivision (c)." To the extent that In re A.M. stands for this proposition, for the reasons set forth in this opinion, we respectfully disagree. Further, though "benefit the child" and "best interests of the child" are similar phrases, they are not identical nor are the provided definitions identical. Had the Legislature intended identical meanings, they would have used identical language. In the absence of ambiguity, we assume the Legislature meant what it said. (Day v. City of Fontana (2001) 25 Cal.4th 268, 273.)
With these distinctions in mind, we do not find either case persuasive to minors' argument. In Ethan N., the court ordered reunification services despite finding several bypass provisions of section 361.5, subdivision (b) applied, where the mother had previously caused the death of a child. This court held the juvenile court's finding that the mother had made progress in alleviating the problems that had led to the removal of her children did not support the finding that reunification would be in the child's best interest. In so holding, this court emphasized the shift in focus after a bypass provision is found to apply from reunification to a child's need for stability and continuity. This court also noted that in addition to the previous death of another child, the circumstances of the case included "a long history of drug abuse, family violence, and the abuse and neglect of other children even after extensive reunification services had been provided." (Ethan N., supra, 122 Cal.App.4th at pp. 66-67.) This court ultimately held that the mother's good progress in her case plan and good visits with the child did not overcome "the enormous hurdle faced by a parent seeking reunification with a child after previously causing the death of another by abuse or neglect," emphasizing again that in such cases, a parent being able to show that reunification services are in the best interest of the child will be rare. (Id. at p. 68.)
In William B., the juvenile court found a bypass provision applied because of the mother's previous substance abuse issues. It nonetheless found services were in the best interest of the children. The appellate court reversed the order granting reunification services, citing Ethan N. and relying heavily on the shift in focus from reunification to stability when a bypass provision has been found to apply. (William B., supra, 163 Cal.App.4th at pp. 1228-1229.) The appellate court also noted that the mother's history demonstrated she failed to overcome her drug addiction despite years of reunification services and effort on her part, and that any significant period of sobriety was achieved while under the agency's supervision. (Id. at p. 1228.)
As we have discussed, neither case is apposite to the extent it relies on the shift in focus from reunification to stability for the children. Before the court has determined a bypass provision has applied, the focus has not yet shifted from family reunification. In any event, the cases are also factually distinguishable. In the present case, unlike in Ethan N., mother took full responsibility for her part in the abuse, and unlike both Ethan N. and William B., mother had not demonstrated that she had previously participated in reunification services and failed. Mother had never been a subject of a dependency proceeding. She had already begun taking responsibility of her part in the children's abuse and distancing herself from her relationship with father. Unlike the cases cited by minors, there was no reason in the present case to conclude that mother would not be successful in reunifying.
The juvenile court's finding was supported by substantial evidence and the juvenile court did not abuse its discretion in ordering reunification services be provided to mother.
DISPOSITION
The juvenile court's order is affirmed.
/s/_________
DE SANTOS, J. WE CONCUR: /s/_________
SMITH, Acting P.J. /s/_________
SNAUFFER, J.