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In re Angelina G.

California Court of Appeals, Fourth District, First Division
Apr 21, 2009
No. D054328 (Cal. Ct. App. Apr. 21, 2009)

Opinion


In re ANGELINA G. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. CRYSTAL G., Defendant and Appellant. D054328 California Court of Appeal, Fourth District, First Division April 21, 2009

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of San Diego County No. NJ13967A-B, Michael Imhoff, Commissioner.

BENKE, Acting P. J.

Crystal G. appeals orders made at the jurisdictional and dispositional hearing regarding her daughters, Angelina G. and Tessa G. She contends the court erred by finding true allegations under Welfare and Institutions Code section 300, subdivision (e) regarding Tessa, and under section 300, subdivision (j) regarding Angelina. She also asserts the court erred by denying her reunification services. We affirm the orders.

Statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

On August 8, 2008, Angelina and Tessa were taken into protective custody after police found the family home in disarray, with numerous cats, trash and cat feces all over the floor. One-year-old Tessa was naked on the floor; three-year-old Angelina was wearing only a dirty diaper. Tessa was severely malnourished and weighed only 10 pounds. The children's father, Mathew G., had just returned from military deployment. Crystal was arrested for child endangerment.

Upon his return from deployment, Matthew called the paternal grandfather in Ohio and described Tessa's condition. The paternal grandfather called the police.

The San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of Angelina and Tessa under section 300, subdivision (b). Both petitions alleged the family home was filthy and unsanitary and the floors were covered with feces, trash and fleas. The petition on Tessa's behalf also alleged she was discovered naked amidst trash and feces and suffered from severe health conditions, including failure to thrive, hypernatremia, dehydration, renal failure, hyperchloremia and hair loss.

Crystal blamed Matthew for the family's situation, saying he spent all their money. She said Tessa just stopped eating and she had no way to take her to a doctor. Crystal said she was four months pregnant and that the child was conceived when Matthew raped her. She said her family had a history of mental health problems and her mother had been diagnosed with schizophrenia and bipolar disorder and had committed suicide. Crystal said she and Matthew had a history of domestic violence and he drank daily and was addicted to pornography. Matthew said he was completely surprised by the state of the home and the children when he returned from deployment.

The social worker reported Tessa had never been immunized and neither parent had sought medical care for her. At the hospital she ate readily and gained more than one pound in three days. Crystal told police she had feared for Tessa's life, but was afraid to seek help because people would think she was crazy or a bad mother. The maternal stepgrandmother said in June 2008 Crystal was very depressed over the death of her own mother, had mentioned suicide and said Matthew had drained their bank account. She said Crystal and Matthew's marriage was in trouble, and Crystal had not wanted Tessa. The maternal great-grandmother agreed Crystal was depressed. The paternal great-grandmother said she had tried to help by depositing money into the parents' bank account, but Crystal said little remained for groceries after she paid their bills. A maternal uncle reported he had lived with Crystal and Matthew from August 2007 until April 2008. He said Crystal had wanted to place Tessa for adoption; Matthew had rejected the idea, but both parents took better care of Angelina than they did of Tessa. The uncle opined Crystal did not want to care for the children, but spent much of her time on her computer.

On August 29, 2008, the Agency filed an amended petition on Tessa's behalf under section 300, subdivision (e), alleging she had suffered severe physical abuse in that Crystal had deprived her of food and medical care despite her obvious malnourished condition. It filed an amended petition on Angelina's behalf under section 300, subdivision (j), alleging Angelina was at substantial risk because of Crystal's abuse of Tessa.

At the jurisdictional hearing, after considering documentary evidence and argument by counsel, the court found the allegations of the amended petitions to be true and ordered the children placed with paternal relatives in Kentucky.

The psychologist who completed an evaluation of Crystal testified it would take a long time for her to benefit from therapy and first she would need to take responsibility for the problems her family was experiencing.

After considering the evidence and counsel's arguments, the court declared the children dependents of the juvenile court and removed them from the parents' custody. It denied services to Crystal under section 361.5, subdivision (b)(5), finding offering services would not prevent continued abuse.

DISCUSSION

I

Crystal contends there was insufficient evidence to support the jurisdictional findings under section 300, subdivisions (e) and (j) because the evidence did not show her actions in depriving Tessa of food were "willful" as required for a finding under section 300, subdivision (e). She further argues she was prejudiced by the findings because the court based its denial of reunification services on the finding of severe physical abuse under section 300, subdivision (e).

A reviewing court must uphold a juvenile court's 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.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Substantial evidence supports the court's finding under section 300, subdivision (e). Section 300, subdivision (e) provides a child comes within juvenile court jurisdiction if the court finds the child was under the age of five and suffered severe physical abuse by a parent. For the purpose of the subdivision, "severe physical abuse" includes "the willful, prolonged failure to provide adequate food." (§ 300, sub. (e).) The evidence before the court fully supports a finding Crystal willfully deprived Tessa of food for a prolonged period.

When police entered the family home on August 8, 2008, they found one-year-old Tessa naked on the floor in the midst of trash, cat feces and fleas. She was covered with filth and fleas and weighed only 10 pounds. The police officers said her bones showed through her skin, she had scratches and bruises and she appeared too weak to raise her head. Three-year-old Angelina was wearing only a dirty diaper and also was covered with fleas and filth. Trash, moldy clothing, cat feces, rotten food, garbage and urine littered the floors and the house had a terrible odor. The refrigerator was empty. Medical personnel at the hospital where Tessa was taken and placed in intensive care diagnosed her as failing to thrive and suffering from malnutrition secondary to being deprived of food. She weighed only 10.34 pounds, the average weight of a one and one-half month old infant. At the hospital she accepted food readily and gained one pound two ounces in less than three days. After a week in foster care she weighed 13.09 pounds and had no problem eating solid foods. X-rays taken after she was removed from the home showed non-food items in her intestinal tract.

Crystal told police that after Matthew left for deployment, Tessa stopped eating and she "feared for [Tessa's] life every day." She knew Tessa was in trouble, but she said she was afraid to ask for help because people would think she was crazy or a bad mother. However, family members said Crystal had never wanted Tessa and had wanted to place her for adoption. The maternal grandfather and stepgrandmother said they had asked the parents about Tessa, but were rebuffed. The parents had provided Tessa with no medical care and no immunizations. The evidence shows Tessa was willfully deprived of food.

Crystal argues although the evidence supports a finding of negligence, her actions cannot be considered willful because it was her mental health issues of depression and thoughts of suicide that caused the neglect. This argument is not persuasive.

Crystal has not shown she suffered from a mental illness that prevented her from forming an intent to willfully deprive her baby daughter of food within the meaning of the statute. The psychologist who evaluated Crystal noted she had some feelings of depression, but said she was not psychotic or suffering from a thought disorder. Although in the past Crystal had threatened suicide, during the evaluation she told the psychologist she did not have suicidal ideation. Crystal had family history of mental illness and she had experienced symptoms of depression in part related to the death of her mother, but she has not shown evidence of a mental illness that would negate the capacity to act intentionally and purposefully. Tessa's extreme condition showed she had been deprived of food for an extended period of time. Crystal's willful starving of Tessa fully supports the court's finding under section 300, subdivision (e).

The evidence also supports the court's finding Angelina was a child described by section 300, subdivision (j). Section 300, subdivision (j) provides a child may be adjudged a dependent child if "[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e) or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions." Although there was not evidence Crystal starved Angelina as she did Tessa, Angelina was found with Tessa in the filthy family home, nearly naked, wearing only a dirty diaper, and covered in cat feces, and had scratches and open sores. Both children were dehydrated. The paternal uncle reported Crystal did not want to care for either of the children and spent much of her time on her computer. The evidence supports a finding of severe neglect under section 300, subdivision (b). It also supports the finding under subdivision (j) that Angelina was at substantial risk of suffering the same or similar abuse that her sister had endured.

II

Crystal asserts the court erred by denying reunification services to her under section 361.5, subdivision (b)(5). She argues the evidence showed services were likely to prevent reabuse and the Agency did not meet its burden to investigate as required by section 300, subdivision (c).

Section 361.5, subdivision (b)(5) states reunification services need not be provided when the court finds by clear and convincing evidence "[t]hat the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent or guardian." Section 361.5, subdivision (c) provides in part:

"In deciding whether to order reunification in any case in which this section applies, the court shall hold a dispositional hearing. The social worker shall prepare a report that discusses whether reunification services shall be provided. . . .

[¶] . . . [¶]

"[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. The social worker shall investigate the circumstances leading to the removal of the child and advise the court whether there are circumstances that indicate that reunification is likely to be successful or unsuccessful and whether failure to order reunification is likely to be detrimental to the child." (§ 361.5, subd. (c).)

The parent bears the burden of showing that services would likely prevent reabuse. (Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 163-164.)

Crystal has not shown error by the court finding reunification services would not be likely to prevent reabuse in the future. Of major concern was Crystal's denial of responsibility for depriving Tessa of food and for exposing the children to the filthy, dangerous conditions in the family home. She told police she was not responsible for the debris, but that she and the children had stayed in a Bed and Breakfast Inn for three days and returned home to find thieves had entered the home and thrown trash and cat feces all around. She also said Matthew and his cousin had conspired to trash the home so the children would be removed and she would be sent to jail. She blamed Matthew for spending all of their money.

The psychologist who evaluated her said "she seemed to vaguely blame somebody else, as she stated that the house was not locked and she came home and she claimed that she did not know 'who or what did that,' stating that it might have been an animal that messed up the place." She also denied the extent of Tessa's suffering, saying Tessa had stopped eating only one to two weeks earlier. However, it was certain that Tessa's extreme condition would have resulted from a much longer period of starvation. Also concerning to the psychologist was Crystal's response in psychological testing. In completing the sentence, "I regret...," Crystal wrote, "nothing." The psychologist found this response strange, expecting she would have some regret for what her children had endured. He opined this indicated her denial of responsibility. Crystal's assertion that the psychologist opined she would benefit from services if she accepted responsibility is not quite correct. What he actually said was that if she were to benefit from services and become an adequate parent in the future she would have to accept responsibility. At the time of her psychological evaluation, only three weeks before the hearing, she was continuing to deny responsibility. The psychologist stated: "At the current time, [Crystal] is making excuses for the home situation or she is blaming others."

The social worker also opined services would not prevent further abuse. As required by section 361.5, subdivision (c), the social worker investigated the circumstances that led to removal of the children and determined that in light of Crystal's denial of responsibility for her family's situation, successful reunification was unlikely. The court found:

"Here, the extent of the denial, the significance of the detachment, the complete absence of empathy indicates to the court that there are no services that can be mobilized that would prevent or likely prevent reabuse or neglect in the future."

Crystal has not shown the court erred by finding there was no likelihood that reunification services would prevent reabuse in the future.

III

Crystal also contends the court erred by denying her reunification services as to Angelina under section 361.5, subdivision (b)(5) because that subdivision applies only when a child is found to be a dependent of the juvenile court under section 300, subdivision (e), and here the court took jurisdiction over Angelina under section 300, subdivisions (b) and (j). Although Crystal did not earlier challenge the court's denial of services as to Angelina on the basis she raises here, we exercise our discretion to address the issue she raises and in so doing hold the court's application of section 361.5, subdivision (b)(5) was harmless error.

Section 361.5, subdivision (b)(7) provides reunification services need not be provided to a parent who "is not receiving reunification services for a sibling or a half sibling of the child pursuant to paragraph (3), (5), or (6)." The court denied services regarding Tessa under paragraph (5). The court had determined it would not order reunification services for Crystal because, considering her consistent pattern of denial of responsibility and lack of empathy for the plight of her children, there was no likelihood reunification efforts would be successful. The court's reliance on section 361.5, subdivision (b)(5), rather than section 361.5, subdivision (b)(7), in denying reunification services for her was harmless error. (People v. Watson (1956) 46 Cal.2d 818, 836.)

DISPOSITION

The orders are affirmed.

WE CONCUR: O'ROURKE, J., AARON, J.


Summaries of

In re Angelina G.

California Court of Appeals, Fourth District, First Division
Apr 21, 2009
No. D054328 (Cal. Ct. App. Apr. 21, 2009)
Case details for

In re Angelina G.

Case Details

Full title:In re ANGELINA G. et al., Persons Coming Under the Juvenile Court Law. SAN…

Court:California Court of Appeals, Fourth District, First Division

Date published: Apr 21, 2009

Citations

No. D054328 (Cal. Ct. App. Apr. 21, 2009)

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