Opinion
NOT TO BE PUBLISHED
Original Proceedings; petition for extraordinary writ review, No. 05CEJ300035, Robert H. Oliver, Judge.
Catarina M. Benitez, for Petitioner.
No appearance for Respondent.
Kevin Briggs, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Real Party in Interest.
OPINION
Before Vartabedian, Acting P.J., Wiseman, J., and Cornell, J.
Petitioner challenges respondent court’s jurisdictional findings and dispositional orders as to her four daughters, M.H., C.H., D.G. and S.G., and its order setting a Welfare and Institutions Code section 366.26 hearing as to D.G. and S.G. We will affirm the juvenile court’s findings and orders as to all four children and deny writ relief (Cal. Rules of Court, rule 8.452) with respect to the setting of the section 366.26 hearing.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
California Rules of Court, rules 8.450-8.452 govern writ petitions to review orders setting a hearing under section 366.26. All other orders issued in dependency proceedings are reviewable by direct appeal. (§ 395, subd. (a)(1).) Petitioner filed a notice of intent to seek writ review, identifying M.H. and C.H. as the subjects of review. However, because the juvenile court did not set a section 366.26 hearing as to them, they are not the proper subjects of writ proceedings. Rather, the court’s orders as to them were directly appealable. Further, the juvenile court set a section 366.26 hearing as to D.G. and S.G., yet petitioner did not name them in her notice of intent to file a writ petition or in the writ petition itself. Consequently, petitioner failed to perfect appellate review as to any of the children. Nevertheless, in the interest of avoiding a future claim of ineffectiveness of counsel and because the issues raised in the writ petition pertain to all four children, this court will exercise its discretion to facilitate review by construing the subjects of the writ petition as D.G. and S.G. and construe the writ petition identifying M.H. and C.H. as a notice of appeal.
STATEMENT OF THE CASE AND FACTS
This case centers on C.H. and the facts and circumstances surrounding serious injuries she sustained in 2005 and 2008 while in petitioner’s care. The core issue is whether petitioner knew or had reason to know in 2008 that C.H. would be harmed.
In February 2005, then two-month-old C.H. was admitted to the hospital, having been diagnosed with fractures of the skull, clavicle and tibia, indicative of child abuse. At the time, petitioner, C.H., and then two-year-old M.H. were living with petitioner’s boyfriend, Manuel. E.H., M.H.’s presumed and C.H.’s then alleged father, was incarcerated.
Matter not available
Initially, petitioner insisted M.H. caused C.H.’s injuries by dropping her. She claimed Manuel had not been around C.H. for several weeks. However, after the admitting physician concluded M.H. could not have caused any of C.H.’s injuries, petitioner disclosed Manuel remembered dropping C.H. in the bathtub several days before her injury.
The Fresno County Department of Children and Family Services (department) took M.H. and C.H. into protective custody and filed a dependency petition on their behalf pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect) and (e) (severe physical abuse), which the juvenile court sustained. At the dispositional hearing in August 2005, the juvenile court ordered reunification services for petitioner but did not offer them to E.H. because he was incarcerated.
Petitioner reportedly severed her relationship with Manuel and complied with her case plan requirements. In November 2005, she gave birth to D.G. and, in September 2006, M.H. and C.H. were placed in her custody under family maintenance. In March 2007, the juvenile court terminated dependency and, in May 2007, petitioner gave birth to S.G.
On May 17, 2008, then three-year-old C.H. sustained second-degree scald burns over nearly 30 percent of her body. She was burned on both forearms from mid-forearm circumferentially all the way out to the fingertips of all five digits. She had second to third-degree burns circumferentially from the calves to the toes. She had burns to her buttocks, vaginal area, back and right flank. The examining physician opined she had been immersed in five to six inches of scalding water and reported the injuries were highly suspicious for “child neglect/abuse.”
Petitioner was interviewed at the hospital. She said she was at work when the scalding occurred and returned home to find the babysitter, Sally, crying and applying cold water to C.H.’s burns. Sally told petitioner she did not know what happened. Petitioner said she moved into her residence two weeks prior and complained to the landlord that the water was too hot however he had not come to fix it. The fire captain on scene told her the water temperature was set at the highest level so that scalding water would come out immediately. Petitioner told the police officer she believed C.H. was accidentally harmed. She also denied having a boyfriend.
Detective Hernandez interviewed Sally at the hospital. She stated she was a family friend who babysat for the children while petitioner worked. She said she had known the family for approximately three years and she and the children had grown attached. They called her “grandma.” On that day, she arrived at petitioner’s home at approximately 7:30 a.m. Shortly after, petitioner left for work. Sometime after lunch, C.H. told Sally she wet her pants. Sally took C.H. to the bathroom to bathe her. She began to fill the bathtub with lukewarm water and placed C.H. in the tub. C.H. began to splash around and play in the water. After approximately 10 seconds, one of the younger children began to cry. Sally left C.H. in the bathtub with the water running to check on the child. As soon as she entered the bedroom, she heard C.H. screaming from the bathroom. She immediately returned to the bathroom where she saw C.H. sitting in the bathtub screaming. The bathtub was full of hot water and C.H.’s hands and feet were burned. She lifted C.H. out of the tub, took her to the living room and began to apply cold water to her burns. She contacted petitioner but was told she had already left work for the afternoon. When petitioner arrived home, petitioner called emergency medical services who, along with firefighters, responded to her home.
During the interview, Sally was very distraught and spontaneously stated, “I’m so sorry I did it. It’s my fault. I should not have left her in there by herself. If I would have stayed in there, she would not have been burned.”
Social worker Melinda Garvey spoke to then-five-year-old M.H. who said petitioner was at work when C.H. was burned and that Sally was there. M.H. said she was outside when she heard C.H. scream. When she went into the house she saw C.H.’s skin “coming off.” She did not know how the incident occurred.
On June 3, 2008, Garvey informed Hernandez she received information from an anonymous caller who said they knew Manuel was watching the children when C.H. was burned and that he injured her. The caller was also aware of the 2005 incident and stated petitioner and the family lied to the department to protect Manuel. The caller expressed fear for C.H., stating Manuel does not like her.
Hernandez met with petitioner at her home and she allowed him to enter and check her residence. She said she lived alone with the children. Hernandez found a cable service bill in Manuel’s name. Petitioner explained she had an outstanding cable box and could not get cable services so she used Manuel’s name with his consent. Petitioner stated Manuel was a friend and the last time she saw him was approximately one week before C.H. was burned. Hernandez also found men’s clothing in petitioner’s closet and men’s personal items. Petitioner stated these items belonged to E.H. who was released from custody on May 21, 2008 and stayed with her occasionally. She said E.H. was the father of M.H., C.H. and D.G. but refused to identify S.G.’s father.
Garvey, who met Hernandez at petitioner’s home, spoke to M.H. who stated a man named E.T. came to the house but she was not supposed to say anything because she would get into trouble. Garvey showed M.H. a picture of Manuel and M.H. identified Manuel as the man she referred to as E.T. She said he stayed in their home often and was in the home when C.H. was burned. She said she sometimes called him “Daddy.”
Hernandez confronted petitioner and asked her who was in the home when C.H. was burned. Petitioner stated only Sally and the children were there. Hernandez asked her if Manuel was there to which petitioner hesitated, looked down and stated “I told you everything.” Garvey took M.H., D.G. and S.G. into protective custody and informed the staff at the burn unit she was placing a protective hold on C.H.
On June 4, 2008, Garvey spoke to one of C.H.’s treating physicians who stated C.H.’s injuries were a classic case of child abuse. He explained that if C.H. were in a tub of hot water with the faucet running and the water was turned to the hot position, C.H. would have stood up rather than remain in a seated position until she was severely burned. He further explained the existing water would not have reached the high temperature it did without C.H. attempting to remove herself.
On June 5, petitioner contacted Hernandez and admitted she lied to the department and that someone else, who she refused to identify, injured C.H. She said she would only reveal the person’s name if her children were returned to her care. She did not deny that Manuel was involved. That same day, Garvey spoke to E.H. who was in county jail. He confirmed he was M.H. and C.H.’s father but denied being D.G. and S.G.’s father. He said he was in prison when C.H. was burned.
The department filed a dependency petition on behalf of five-year-old M.H., three-year-old C.H., two-year-old D.G. and 12-month-old S.G. pursuant to section 300, subdivisions (a), (b) and (e) (subdivisions (a), (b) and (e).). The subdivision (a) allegations were subsequently withdrawn.
On June 6, Garvey received a call from the hospital social worker who stated C.H. made several spontaneous statements that her “Daddy” burned her. Garvey explained that she must have been referring to someone other than E.H. because he was incarcerated.
On June 12, M.H. was interviewed by a forensic interviewer. M.H. stated her dad, who she identified as Manuel, burned C.H. in the bathtub. She said she saw him do it and that he did it on purpose because C.H. urinated on the floor and he had to mop up the urine. She said Manuel turned on the hot water in the bathtub and after he burned C.H., he put her on the couch all day because he did not know what else to do with her. When petitioner came home and began to cry, Manuel cried also because he did not want to go to jail. M.H. also stated that Sally and Manuel were the only adults in the home when C.H. was burned. When asked where Manuel lived, she said “with us.”
On or about June 20, Hernandez obtained the audio recording of the 911 call placed to emergency medical services on the day C.H. was burned. In the audio recording, Hernandez heard the voice of an excited and distraught adult male in the background, which contradicted petitioner and Sally’s earlier statements to him there were no adult males in the home at the time of the incident. Several days later, Hernandez spoke to petitioner’s landlord who said petitioner told him her husband would be living with her and that he earned money taking care of his mother. Hernandez noted that during a prior conversation, petitioner stated Manuel received money for taking care of his mother.
In August 2008, social worker Brown visited the children at their foster placement. C.H., who was wearing shorts, showed Ms. Brown her burns and stated, “Look, my Daddy burned me.” Ms. Brown asked C.H. who her “Daddy” was but C.H. was distracted and did not answer. However, the care provider told Ms. Brown that C.H. had previously stated, “My Daddy, Manuel did it” and when C.H. asked people if they wanted to see her burns, she would said “My Daddy did it.”
During that same visit, Ms. Brown asked M.H. who burned C.H. M.H. said, “My Daddy burned her in the bathtub.” When asked to identify her “Daddy,” M.H. said “Manuel.” M.H. also told Ms. Brown Manuel lived with them.
In August 2008, the department filed its dispositional report, recommending the court adjudge the children dependents and deny petitioner reunification services under section 361.5, subdivision (b)(3), (b)(5) and (b)(6). The department also reported Manuel’s whereabouts were unknown. The matter was set for a combined jurisdictional/dispositional hearing, which was continued multiple times and conducted over seven days in July and August 2009.
Meanwhile, in March 2009, petitioner’s visits were discontinued after M.H.’s therapist, Charmaine Radellant, Psy.D., informed the department M.H. displayed significant emotional disturbances following visits with petitioner, which were becoming detrimental to her daily functioning. M.H. revealed that petitioner instructed her not to eat, and the care provider subsequently noticed a consistent pattern of meal refusal, defiance and disruptive behavior in the foster home and at school. Dr. Radellant opined it would be in the children’s best interests if visitation with petitioner were terminated.
Also during this interim period, there was mounting evidence that petitioner and Manuel maintained an ongoing relationship and that petitioner was coercing M.H. to lie to protect him. In November 2008, Hernandez discovered that Manuel received traffic stops in September and October 2008 while driving petitioner’s car and using her address. Further, during therapy sessions in June and July 2009 with Dr. Radellant, C.H. first disclosed that E.H. scalded C.H. and then confessed that it was Manuel. She said she lied because petitioner told her to and she was afraid she would get into trouble if she refused.
In July 2009, the juvenile court convened the seven-day contested jurisdictional/dispositional hearing. During the jurisdictional phase of the hearing, which concluded on the sixth day, petitioner’s attorney sought to rebut the department’s contention that C.H. was intentionally harmed and that petitioner failed to protect the children. To that end, petitioner’s attorney called M.H. to testify and attempted to highlight her conflicting statements as to who was caring for her and her siblings on the day C.H. was burned. M.H. testified Sally did not babysit for her and her siblings and was not there when C.H. was burned. She said Manuel was watching them. She said Manuel put C.H. in the bathtub but she was in her bedroom at the time and did not see him do it. She acknowledged initially telling Dr. Radellant that E.H. put C.H. in the bathtub and then telling her that Manuel did it. However, she could not explain why she did that. Under questioning by minors’ counsel, M.H. testified she saw Manuel take C.H. to the bathroom but did not see him put her in the bathtub.
Petitioner’s attorney also called Dr. Radellant and social worker Brown as witnesses in an attempt to undermine M.H.’s credibility. Dr. Radellant testified she was addressing issues of dishonesty in her sessions with M.H. The one instance of which she was aware occurred in March or April 2009 when M.H. stole money from her foster parent and blamed it on one of the other children. Ms. Brown testified she received a progress letter from M.H.’s teacher in March 2009 stating M.H. had a tendency to lie. Ms. Brown attempted but was never able to discuss the nature of M.H.’s lying with the teacher.
Sally was called to testify that she was the only person caring for the children at the time C.H. was injured. Under questioning by petitioner’s attorney, she denied knowing or having ever met Manuel. However, on cross-examination by minors’ counsel, she admitted Manuel is her grandson. She said she lied because Manuel was being wrongfully accused of hurting C.H.
Finally, petitioner was called to clarify her relationship with Manuel and deny that she left the children in his care. She denied trying to conceal an ongoing relationship with him. She testified she contacted Manuel approximately a week before C.H. was injured because he is D.G.’s father and she asked him for child support. She explained she was in her car with Manuel in September and October 2008 because she wanted to speak to him privately about court matters. Petitioner further testified she believed Manuel injured C.H. in 2005 but denied leaving the children in Manuel’s care on the day C.H. was scalded. She also denied telling the court at the detention hearing that Manuel was S.G.’s father. She said she gave the name of another man.
Following testimony and argument by counsel, the juvenile court found the subdivision (b) and (e) allegations true and proceeded to the dispositional phase of the hearing. E.H. testified concerning his paternity and was declared C.H.’s presumed father. Aside from that, no further evidence was offered to the court.
During argument, county counsel argued the court should deny petitioner reunification services as recommended in its report but offer them to E.H. as to M.H. and C.H. Petitioner’s attorney argued the children were attached and bonded to petitioner and, therefore, offering petitioner reunification services would serve their best interests.
At the conclusion of the hearing, the juvenile court denied petitioner reunification services pursuant to section 361.5, subdivision (b)(3), (5) and (6) as to all four children and set a section 366.26 hearing as to D.G. and S.G. to implement a permanent plan. The court ordered E.H. to participate in a plan of reunification for M.H. and C.H. and set a review hearing for February 2010.
DISCUSSION
I. Substantial evidence supports the juvenile court's jurisdictional finding pursuant to section 300, subdivision (b).
Petitioner challenges the juvenile court's findings pursuant to section 300, subdivisions (b) and (e). However, as a reviewing court, we can affirm the juvenile court’s jurisdictional finding over the children if we conclude substantial evidence supports a finding under subdivision (b) or (e). (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) Because we conclude substantial evidence supports a jurisdictional finding under subdivision (b), we need not discuss whether jurisdiction was also proper under subdivision (e). (Ibid.)
Section 300, subdivision (b) provides, in relevant part, that a child may fall within the jurisdiction of the juvenile court if that “child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child, or the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left.…” (§ 300, subd. (b).) Thus, three elements are necessary for a jurisdictional finding under section 300, subdivision (b): “(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial risk’ of such harm or illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.)
Here, petitioner does not dispute that C.H. suffered serious physical harm. Rather, she contends Sally’s testimony established that Sally was taking care of the children when C.H. was injured. Since petitioner was at work and Sally was caring for the children, petitioner contends petitioner could not have known how C.H. was injured nor could she have foreseen that C.H. would be injured while in Sally’s care. Therefore, there is no evidence she was negligent in leaving the children with Sally or evidence her conduct in any way contributed to C.H.’s injuries.
Petitioner’s argument fails for several reasons. First, Sally’s testimony lacked any credibility because she lied under oath, denying that she knew Manuel, her own grandson. Consequently, there is no reason to believe her testimony that petitioner left the children solely in her care on May 17 or that she accidentally caused C.H.’s injuries.
Further, there is compelling evidence that petitioner maintained an ongoing relationship with Manuel and he was, if not a member of the household, at least a frequent visitor to the home. Petitioner admitted Manuel is D.G.’s father and there is evidence in the record he may also be S.G.’s father. In addition, petitioner told her landlord she had a husband who would be living with her and contributing to the household income by taking care of his mother. Petitioner told Hernandez Manuel earned money taking care of his mother. Petitioner received cable service in Manuel’s name and he drove her car. Men’s clothing and belongings were found in petitioner’s home. Further, M.H. told social worker Garvey Manuel stayed with them often. She told the forensic investigator and social worker Brown that Manuel lived with them. Consequently, there is more than substantial evidence that petitioner either left the children in Manuel’s care or left them in Sally’s care knowing that Manuel would be in the home.
Additionally, there is substantial evidence Manuel injured C.H. Most notably, C.H. matter-of-factly identified Manuel as the one who caused her burns, apparently whenever the subject arose. Further, M.H. testified Manuel burned her sister and only stated otherwise under petitioner’s direction. One could also infer from petitioner’s behavior that Manuel burned C.H. She told Hernandez she knew who burned C.H. and offered to tell him who it was if, in return, she could regain custody of her children. And, when directly asked if Manuel burned C.H., she refused to answer.
The foregoing coupled with petitioner’s knowledge that Manuel severely injured C.H. in 2005 supports a conclusion she negligently left the children in Manuel’s care resulting in the serious scalding C.H. sustained and a jurisdictional finding the children are minors described under section 300, subdivision (b).
II. The juvenile court did not err in denying petitioner reunification services.
Petitioner argues there was insufficient evidence to deny her reunification services under section 361.5, subdivision (b)(3), (b)(5) and/or (b)(6). Alternatively, she argues the juvenile court abused its discretion in not offering reunification services given the strength of the parent/child bond she shares with the children.
When a child is removed from parental custody, reunification services must be offered to the parent(s) unless one of the statutory exceptions enumerated in subdivision (b) of section 361.5 applies. (§ 361.5, subd. (a).) If a parent is described by an exception, the juvenile court “need not” provide him or her reunification services. (§ 361.5, subd. (b).) Under most of the exceptions, the juvenile court “shall not” order reunification services unless it finds, by clear and convincing evidence, that reunification is in the best interests of the child. (§ 361.5, subd. (c).)
As was true of the jurisdictional finding, we need only find substantial evidence supports one statutory basis for denial to affirm the juvenile court’s order. (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744.) In this case, because we conclude substantial evidence supports the juvenile court’s denial of services under subdivision (b)(3) of section 361.5, we need not consider the court’s denial of services under subdivision (b)(5) and (b)(6).
Subdivision (b)(3) provides in part that a parent need not receive reunification services if clear and convincing evidence shows “[t]hat the child or a sibling of the child has been previously adjudicated a dependent pursuant to any subdivision of Section 300 as a result of physical... abuse, that following that adjudication the child had been removed from the custody of his or her parent... pursuant to Section 361, that the child has been returned to the custody of the parent... from whom the child had been taken originally, and that the child is being removed pursuant to Section 361, due to additional physical... abuse.”
Here, subdivision (b)(3) is wholly applicable to petitioner’s circumstances. C.H. was adjudicated a dependent of the court in April 2005 after the juvenile court found she suffered serious physical harm and severe physical harm inflicted non-accidentally while in petitioner’s care pursuant to section 300, subdivisions (a) and (e) respectively. As a result, she was removed from petitioner’s custody in August 2005, returned in September 2006 and removed from petitioner’s custody a second time in August 2009 after she was physically abused again. Additionally, subdivision (b)(3) pertains to M.H., S.G. and D.G. because they are C.H.’s siblings.
Further, having found a factual basis to apply subdivision (b)(3), the juvenile court was prohibited from offering petitioner reunification services unless it found, by clear and convincing evidence, reunification would serve the children’s best interests. (§ 361.5, subd. (c).) The court did not so find. On the contrary, the court found reunification would place the children at risk of significant additional danger in light of petitioner’s failure to protect C.H. from further physical abuse. We concur, and would add that the lengths to which petitioner went to protect Manuel, including causing M.H. to lie, further supports the juvenile court’s conclusion reunification would not serve the children’s best interests.
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.