Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. J218757, Marsha Slough, Judge.
Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
Sharon Rollo, under appointment by the Court of Appeal, for Minor.
OPINION
RAMIREZ, P.J.
Appellant L.E. (mother) appeals from the juvenile court’s order denying her reunification services and visitation as to her son A.M. at the contested jurisdiction and disposition hearing held on March 11, 2008. Mother argues the court abused its discretion when it denied her reunification services because services would have been in A.M.’s best interest. Mother also argues the court violated her due process rights because it denied her visitation with the minor even though the Department of Children’s Services (DCS) did not give her prior notice that it would recommend denial of visitation. Finally, mother argues sufficient evidence does not support the court’s order denying her visits with A.M. For the reasons discussed below, we affirm the juvenile court’s rulings.
Statement of Facts and Procedure
On Saturday, December 15, 2007, mother and her boyfriend of three months, F.C. (the boyfriend), brought A.M.’s nearly two-year-old sister, E.M., to the emergency room after mother awoke to find her not breathing. E.M. was dead on arrival at the hospital. She had multiple deep bruises and abrasions on her thighs, abdomen, chest, back and head. An autopsy showed that she had a laceration to her liver, multiple impacts to her abdomen, a possible rupture to her pancreas, internal bruising to her stomach, and bleeding and laceration to the mesentery. E.M.’s abdomen was filled with bloody matter. Peritonitis had set in. The cause of death was blunt force trauma.
A. Petition
On December 18, 2007, DCS filed a petition under Welfare and Institutions Code, section 300, alleging serious physical harm (subd. (a)), failure to protect (subd. (b)), causing another child’s death through abuse or neglect (subd. (f)), and abuse of sibling (subd. (j)).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
B. Detention
Mother’s two other children, six-year-old A.M. and his four-year-old sister, A.T. along with the boyfriends’s own young son, were taken into custody. In the detention report prepared for the December 19, 2007 detention hearing, the social worker described the police interview with mother. Mother stated that she and the boyfriend had been together for three to five months. At first she claimed he was a good person and was appropriate with the children. Then mother admitted that he hit the children, spanks them on the thighs and buttocks, grabs them, pushes them down and pokes them in the chest area. Mother stated that the boyfriend hit E.M. on Tuesday night (the girl died on Saturday) and had time alone with her on Wednesday. Mother took E.M. to a medical clinic on Wednesday night because she had been vomiting. Mother said the boyfriend hit E.M. on Thursday because she was vomiting and not eating. Mother said she was aware that the boyfriend was hitting E.M. and said she heard the girl crying after he hit her.
Only A.M. is the subject of this appeal. Mother previously filed a writ petition concerning A.T., which petition this court denied on May 14, 2008, in opinion number E045368.
The social worker also observed the police interviews with A.M. and A.T. and later interviewed them in foster care. Both children stated that both mother and the boyfriend hit them and left bruises. A.M. stated that the boyfriend hit both him and his own son with a closed fist and showed them how to make a fist with the knuckle of the second finger sticking out. A.T. said that both adults hit her with an open hand and a belt. She told the social worker that the boyfriend hit E.M. because she would not eat and “threw [E.M.] on the bed and now she’s dead.”
The boyfriend was on parole for having sex with a minor (Pen. Code, § 261.5, subd. (c)) and police detained him on a parole violation. Mother had a previous DCS referral for sexual abuse in October 2006.
It appears from a later interview of A.T.’s father that the referral was regarding A.T. A.T.’s father told the social worker that mother provided him with very little information regarding the incident, telling him that she had called the police and it had been taken care of legally. Mother stated that she made a report about the event, but did not seek treatment for her daughter.
At the detention hearing, the juvenile court ordered A.M. and A.T. detained in foster care and ordered visitation with mother once she was released from custody.
C. Jurisdiction and Disposition
In the jurisdiction and disposition report filed January 9, 2008, the social worker recommended mother receive no reunification services. No mention was made regarding visitation.
The social worker interviewed mother on December 28, 2007. Mother reported that she would often leave her three children with the boyfriend while she was working. She confronted the boyfriend once after finding a bruise on E.M.’s rear end, and told him to never hit her children. The boyfriend told her he spanked the girl because she would not eat. Another time A.T. told her that the boyfriend had slapped E.M. in the face, but that mother did not notice any marks. One week before E.M.’s death, mother saw a bruise on the girl’s thigh. She questioned A.T., who told her that “The boyfriend hits them.” Mother stated she takes medication for depression in the morning and sleeping pills at night, and said she “slept hard” sometimes. A few times she believed she heard E.M. crying at night, but could not tell if it was a dream. One night she got up and found the boyfriend in the room with the crying girl. The boyfriend told her E.M. wanted her bottle and he was not going to give it to her.
Mother reported she had seen the boyfriend “sock” his son in the chest or stomach and that the boy could not breathe for a moment. Mother called the boyfriend’s sister to tell her what had happened, and the boyfriend’s sister told her that “he was mean.” Mother also stated she called the boyfriend’s mother about the incident, but stated the boyfriend’s mother did not believe her.
Mother stated that, in the week before E.M. died, she was aware that the boyfriend was hitting the girl, and that she heard E.M. crying after he hit her. She stated that the boyfriend hit the girl on Tuesday, was alone with her on Wednesday, and hit her again on Thursday because she was vomiting and not eating.
Mother said she had been using marijuana since age 11 and drinking since age 13, except for a period in her teens when she was serving God, and while she was pregnant. For the past year she had used marijuana several times a day, almost every day. Mother stated that both of her parents had used drugs and alcohol, and that she was sexually abused by her mother’s friends and boyfriends from the age of two until fourteen, and that her mother was aware of this but did nothing to stop it. She moved away with A.M.’s father at age sixteen.
Mother stated A.M.’s father, Mr. M., would hit her several times a week while they were together. She described an incident where he choked her until she passed out and stuffed pills in her mouth while she was unconscious. Mr. M. admitted to hitting and pushing mother during one incident, after which mother called police and he was deemed to have violated his parole. Mr. M. has an extensive arrest record that includes assault with a deadly weapon, battery with serious bodily injury, car theft (for which he received a two-year prison sentence) multiple parole violations, weapons charges, drug charges, and spousal battery.
The father of A.T. also has an extensive criminal history, including corporal injury on a spouse, for which he received a four-year prison sentence, and child cruelty.
Mother had a violent relationship with the boyfriend. She said he hit her every few days in the back and told people “he just got done beating her.” She stated she kicked him out of the house for seven days a few weeks before E.M.’s death, but he kept coming home at 1:00 or 2:00 a.m., banging on the windows and threatening them. The boyfriend told her “this is what you get for messing with a gangster.” One night the boyfriend broke into the house and choked mother until she was unconscious. Another time mother’s own father came over to check on her and the boyfriend wanted to fight him, so she had to step between them. Mother stated she asked the boyfriend’s family to help her to get him to leave. Mother said that when things got bad she would take the children and leave for a few days. She never called the police.
Mother stated she had a difficult time financially and had had relationships with five men for money.
The social worker reported that Mother stated when she took E.M. to the doctor on the Wednesday before she died, she told the doctor that E.M. had black diarrhea and showed the doctor the girl’s stomach. The doctor said the stomach just had skin discoloration. Mother said the doctor never really examined E.M. Mother stated she did not tell the doctor that the boyfriend had been hitting E.M.
The jurisdiction and disposition hearing was held on January 9, 2008. The court continued the hearing so mother could be present in custody, and so DCS could comply with notice requirements under the Indian Child Welfare Act (ICWA). Mother was appearing in another court regarding criminal charges filed in E.M.’s death.
The social worker filed an addendum report on February 4, 2008, with the police report attached. The police report included the police interview of mother. In the interview, mother stated that on Friday, December 14, 2007, the day before E.M.’s death, she had a fight with the boyfriend because he told her she was being an “asshole” for protecting her kids. She said that E.M. would cry and was “scared” all the time. She also stated that the boyfriend is “rough” with the kids and that she has to calm him down. Mother said that she had seen the boyfriend push his hand hard into E.M.’s chest area and hit her very hard before, and that the bruises on E.M.’s legs came from the boyfriend hitting her. Mother stated that she had seen the boyfriend hit E.M. on the legs on the Thursday before her death, and that mother had hit E.M. on Friday before going to bed. She also stated that the boyfriend “beat the shit” out of his own son, and that the boyfriend’s sister and her own father had come over on Friday because the boyfriend was calling the kids “bitches.”
Mother told the police detective that she had seen the boyfriend hit E.M. on Monday, Tuesday, Wednesday, Thursday and Friday the week she died, and that he hit E.M. especially hard on Monday, and on Thursday was hitting E.M. and calling her a “bitch.” Mother told the detective that she saw bruises on E.M.’s body, but did not call police. Mother stated that she and E.M. fell asleep on the living room floor Friday night around 11:00 p.m., and that E.M. was moaning. E.M. was not breathing when mother woke up to check her at 5:00 a.m.
Mother told the detective that she smokes marijuana four to five times per day, and that she smoked it on Friday, December 14, 2007, after her last fight with the boyfriend.
The police arrested the boyfriend for murder and assault on a child. Mother was arrested for child endangerment.
Mother attended the jurisdiction and disposition hearing on February 7, 2007. The hearing was set contested and continued.
The contested jurisdiction and disposition hearing was finally held on March 11, 2008. Mother’s counsel called the social worker as a witness. The social worker testified that he had no evidence that mother had caused severe injury to E.M., but that mother had admitted to spanking the girl with a belt. The social worker testified that the failure to protect allegations in the section 300 petition were based on Mother’s negligence in failing to protect her children, even after the children told her the boyfriend was hitting them. The social worker also stated his opinion that mother’s judgment and ability to protect her children were dulled by her marijuana use, specifically on the last night that E.M. was alive, Friday December 14, 2007.
A friend of mother, J.T., also testified. She stated that her daughter and mother had been friends for 15 years. She stated that she had never seen mother mistreat her children, but admitted that she saw them only every one or two months, and that she did not know whether mother had used drugs.
At the end of the hearing, the juvenile court denied reunification services to mother pursuant to section 361.5, subdivisions (b)(4) [death of another child] and (b)(6) [severe physical harm to a sibling]. The court based its decision on mother’s “de minimis” efforts to protect her children and the fact that she continued to leave them in the care of the boyfriend despite her knowledge that he was violent with them. This appeal followed.
Discussion
A. Reunification Services and the Child’s Best Interest
Mother argues the juvenile court abused its discretion when it denied her reunification services because it did not consider whether services would have been in A.M.’s best interest, pursuant to section 361.5, subdivision (c), and services would in fact have been in A.M.’s best interest. We disagree.
Mother does not challenge the sufficiency of the evidence supporting the juvenile court’s findings under section 361.5, subdivisions (b)(4) and (b)(6).
Reunification services need not be provided to a parent when the juvenile court finds that the parent has caused the death of another child through abuse or neglect or when the child is a dependent child because a parent inflicted severe physical harm on a sibling. (§ 361.5, subds. (b)(4) & (b)(6).) If the juvenile court finds that either of these subdivisions apply, it cannot 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).) The burden of affirmatively demonstrating by clear and convincing evidence that reunification is in the best interests of the children falls upon the parent. (In re Ethan N. (2004) 122 Cal.App.4th 55, 66.)
Here, mother’s counsel presented the juvenile court with no evidence whatsoever that reunification would be in A.M.’s best interest. Thus, she did not carry her burden below and her argument on appeal fails.
B. Visitation – Due Process, Detriment, and Substantial Evidence
Mother also challenges the juvenile court’s order denying her visitation with A.M.
1. Due Process
Mother first argues that DCS violated her right to due process because it did not notify her that it intended to seek denial of visitation until the first day of trial, after the case had been submitted for argument. Specifically, mother argues, the DCS recommendation for no visitation was not contained in the jurisdiction and disposition report filed January 9, 2008, or in the addendum report filed February 4, 2008, and that this oversight requires automatic reversal of the order denying visitation.
Mother bases this contention solely on the holding in Judith P. v. Superior Court (2002) 102 Cal.App.4th 535 (Judith P.), which is inapplicable to this case in at least two respects. In Judith P., the juvenile court, at a status review hearing, terminated the mother’s reunification services and denied her request for a continuance and a contested hearing. (Id. at pp. 543-544.) The appellate court held that the child welfare agency’s failure to serve the mother with the hearing status report at least 10 days before the status review hearing as required by statute was a structural error that required per se reversal because it prevented the mother from preparing her defense. (Judith P. at p. 558.)
The facts of Judith P. are distinguishable from the facts in this case. First, as DCS points out, there is no statutory requirement that that the social worker include in a report the recommendation regarding visitation, and thus no violation of statute at all. This in itself is enough to defeat mother’ claim on this point
Second, Judith P. involved the court’s denial of the parent’s requests for a continuance and contested hearing as a result of the lack of notice. The Court of Appeal stated: “It is fundamentally unfair to terminate either a parent’s or a child’s familial relationship if the parent and/or child has not had an adequate opportunity to prepare and present the best possible case for continuation of reunification services and/or reunification.” (Judith P., supra, at pp. 557-558.) In the instant case, mother did not request a continuance based on DCS’s changed recommendation regarding visitation, and the court accordingly did not deny her a contested hearing on this issue. The hearing proceeded without any comment by mother’s counsel as to visitation or argument that the department’s changed recommendation was without notice. Thus, mother was simply not denied the opportunity to fully prepare for the hearing because mother’s counsel could have, but chose not to, request a continuance.
Mother contends her counsel did not know about the “no visitation” recommendation until DCS counsel’s closing argument. Her counsel could even at that point have requested a continuance.
2. “Detriment” vs. “Best Interest” Standards
Mother secondly challenges the juvenile court’s order denying her visitation, based on both the court’s use of the “best interest” standard rather than a finding of “detriment,” and a lack of substantial evidence to support the court’s ruling.
Specifically, mother points to section 361.5, subdivision (f), which provides that, if the court does not order reunification services pursuant to, among others, subdivisions (b)(4) and (b)(6), the court “may continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child.” Mother argues that this means the court must make a finding of detriment if it chooses to deny visitation to a parent not receiving reunification services.
As explained in In re J.N. (2006) 138 Cal.App.4th 450, 459 (J.N.), “section 361.5, subdivision (f) does not dictate a particular standard the juvenile court must apply when exercising its discretion to permit or deny visitation between a child and a parent who has not been receiving reunification services. The Legislature instead has left this determination to the court’s discretion for the narrow group of parents . . . who have been denied reunification services at the outset. . . . The best interests of the child is certainly a factor the court can look to in exercising its discretion to permit or deny visitation.” In other words, section 361.5, subdivision (f), requires the juvenile court to deny reunification services to such parents when it makes a finding of detriment. It does not require a finding of detriment before the court may use its discretion to deny visitation. Mother’s argument to the contrary, including her request that we disagree with the holding in J.N., is without merit. We next examine the record to determine whether it supports the juvenile court’s conclusion that visitation with mother is not in A.M.’s best interest.
3. Substantial Evidence Supports the Visitation Order
At the conclusion of the jurisdiction and disposition hearing held on March 11, 2008, the juvenile court concluded: “Mother is not entitled to visits pursuant to the case In re: Jay N. [¶] The court does not believe it would be in the best interest of these two children to allow any visitation with their mother.” Mother argues that there was no evidence in the record to support the court’s ruling, because DCS relied on its reports rather than calling witnesses or introducing additional evidence at the hearing. We find substantial evidence in the record to support the ruling, as follows. First, mother continued to leave all three children in the boyfriend’s care, despite her knowledge of his abuse. Mother obtained this knowledge through complaints from the children themselves, observations of bruising on E.M. before she died, and actually witnessing the boyfriend physically abuse her children and his own son. Second, mother repeatedly entered into relationships with men who physically abused her, which put her children at risk. Third, mother’s longstanding drug problem interfered with her ability to protect her children. Each of these factors evidences mother’s continuous disregard for the safety of A.M. and her other children, and sufficiently support’s the juvenile court’s conclusion that visitation would not be in his best interest.
The court report consistently, but incorrectly, refers to In re J.N. as “Jay N.”
Disposition
The juvenile court’s rulings are affirmed.
We concur:
HOLLENHORST, J., MILLER, J.