Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment of the Superior Court of San Diego County Super. Ct. No. NJ13925A-B, Michael Imhoff, Commissioner. Affirmed.
AARON, J.
Christina H. and Christopher D. appeal the dispositional judgment in the dependency case of their sons Christian D. and C.D. Christopher contends that the juvenile court erred by ordering him to participate in substance abuse treatment, removing the children from his custody, and ordering supervised visits. Christina contends that the court erred by denying her services to reunify with C.D. We affirm.
BACKGROUND
In June and July 2008, the San Diego County Health and Human Services Agency (the Agency) filed dependency petitions for Christian (Welf. & Inst. Code, § 300, subds. (b), (e)) and C.D. (§ 300, subds. (b), (j)). The petitions were based on the following events. On March 30, Christopher shoved Christina. She struck him several times with her fists and stuck her thumb under his chin. This occurred in the family home while one-year-old Christian and five-month-old C.D. were at home. On May 25, Christian drank Tilex. On May 27, he drank Drano that Christina had mixed with apple juice in his "sippy" cup. The ingestion of these caustic substances caused extensive damage to Christian's esophagus and stomach, including chemical burns that required surgery. He suffered severe swallowing discoordination which may be permanent. If Christian had not been treated, he could have died or suffered permanent disability due to esophageal stricture and perforation.
All statutory references are to the Welfare and Institutions Code.
After this incident, Christian was detained in the hospital, and C.D. was detained in a foster home. When Christian was released from the hospital, he was detained in foster care. Christina was arrested and jailed in connection with the poisoning of Christian. In October 2008 the court entered true findings on the petitions. It found that Christina was responsible for Christian's ingestion of poison on both occasions in acts of "extraordinary... depravity." The court expressly rejected Christina's allegation that Christopher was responsible for the poisoning. The dispositional hearing took place in November and December.
DISCUSSION
I
The Court Did Not Abuse Its Discretion By Ordering Substance Abuse Treatment For Christopher
As part of Christopher's reunification plan, the court ordered him to participate in the Substance Abuse Recovery Management System (SARMS) program. Christopher contends that this was error because there is no evidence that he has a current substance abuse problem, and no evidence that substance abuse led to the dependency.
"The [juvenile] court has broad discretion to determine what would best serve and protect the child's interest" and what services would promote reunification. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) When the record demonstrates that a parent has a substance abuse problem, treatment for that problem may be appropriate even if the juvenile court does not make a jurisdictional finding related to substance abuse. (Id. at pp. 1005, 1007-1008.) We may not reverse absent a clear abuse of discretion. (In re Neil D. (2007) 155 Cal.App.4th 219, 225.)
At the outset of this case, Christopher admitted that he is a recovering addict. Marijuana and methamphetamine were his past drugs of choice, although he had used whatever drugs were available. He said that he had not used drugs for 11 years, but conceded that he continued to drink alcohol during that period, and acknowledged that drinking "can be classified as an addiction." Christopher characterized himself as a "social drinker," and denied any current or past problems with alcohol. He claimed that he could safely have one or two drinks, and admitted having consumed the "equivalent of two" drinks before the March 2008 domestic violence and being under the influence at that time. At the dispositional hearing, Christopher testified that he was not drinking "as of right now" and that he was willing to abstain from alcohol "if necessary."
The record demonstrates that Christopher's drinking, which may be considered a form of substance abuse, was intertwined with the events leading to this dependency case. The record also demonstrates that he was unaware of any problems stemming from his drinking. The violence between Christopher and Christina occurred, by Christopher's own admission, while he was under the influence of alcohol—a state he achieved by consuming a quantity of alcohol that he deemed to be safe. On this record, the juvenile court did not abuse its broad discretion by concluding that Christopher's drinking was an impediment to reunification, and ordering him to participate in SARMS. Every child, particularly a child with special medical needs, such as Christian, "requires a stable, sober caregiver." (In re Christopher H., supra, 50 Cal.App.4th at p. 1007; see also § 300.2.)
II
There Is Substantial Evidence to Support the Order Removing the Children From Christopher's Custody
The juvenile court may remove a child from a parent's physical custody if it finds, by clear and convincing evidence, that "[t]here is or would be a substantial danger to the [child's] physical health, safety, protection, or physical or emotional well-being... if the [child] were returned home" and there are no reasonable means of protecting the child's physical health short of removal. (§ 361, subd. (c)(1).) "The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus... is on averting harm to the child." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, citations omitted, disapproved on another ground by Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) The juvenile court may consider a parent's past conduct and current situation, and gauge whether he or she has progressed sufficiently to eliminate the risk to the children. (In re S. O. (2002) 103 Cal.App.4th 453, 461; cf. In re Jonathan R. (1989) 211 Cal.App.3d 1214, 1221.)
In the juvenile court, the Agency had the burden of showing, by clear and convincing evidence, that removal was necessary. On appeal, Christopher has the burden of showing that there is no substantial evidence to support the removal order. (In re Diamond H., supra, 82 Cal.App.4th at p. 1135; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
The juvenile court commended Christopher for abstaining from the use of narcotics "for the better part of a decade." The court noted, however, that Christopher did not recognize that he was susceptible to alcohol addiction and that his excessive drinking had contributed to his violent interactions with Christina. In view of "[o]ur circumscribed role on appeal and limited vantage point" (In re Y.R. (2007) 152 Cal.App.4th 99, 112, disapproved on another ground by In re S.B. (2009) 46 Cal.4th 529), we conclude that there is substantial evidence to support the removal order.
Christian had significant medical needs. It required that "all of his oral intake... be thickened to a honey-like consistency in order to prevent" liquid from filling his lungs. Christopher checked the consistency of the mixture, but had not reconstituted the thickener himself. He was appropriate during visits but had trouble caring for both boys at once. He had not learned to deal with Christian's aggressive behavior.
Christian smeared his feces on the carpet and on other children, tore down closet doors, threw food, and hit other children.
Christopher was inattentive to the children's medical needs while they were in his custody and during the pendency of this case. He did not attend the children's appointments or speak with their medical providers. He received notice of Christian's swallow study appointment but did not attend. He missed C.D.'s well-child checkup. He overslept and missed Christian's dental extraction. Christopher never called the dentist. He called the foster parent but did not ask about the extraction. At the time of the hearing, Christopher had not spoken with the foster parent for more than a month.
For example, in April 2008, Christian was taken to the Children's Hospital emergency room after he sustained a skull fracture in a car accident. Christina, who was also injured in the accident, was taken to another hospital. Christopher remained at the accident scene with the car. A Children's Hospital social worker called him five times, asking him to come to the hospital to be with Christian. When Christian was ready to be discharged, it was several hours before Christopher arrived to pick him up.
Christopher made one attempt to attend a medical appointment, but the appointment had been rescheduled without his knowledge. He made one call to Christian's doctor's office but the office would not release information to him. After the social worker notified the doctor's office that Christopher was entitled to the information and informed Christopher that she had done so, Christopher never called the doctor's office again to obtain the information.
After 12 to 14 sessions, Christopher's therapist testified that he was receptive and motivated. She expressed concern, however, that he was not attending the children's medical appointments and that he would not tell the social worker how to contact his girlfriend. Christopher had brought his girlfriend to a visit without permission, and refused to give the Agency any information about her, other than her name. The girlfriend later told the social worker that she had a drug-related criminal history, and said that she had completed a drug program.
Christopher never began participating in a domestic violence group as recommended by his therapist and the social worker. The social worker believed that the children would be at risk if Christopher entered into a relationship before completing domestic violence treatment. Christopher was a registered sex offender based on 1995 and 1998 convictions for violent crimes against women.
Christopher continued drinking, at least until the March 2008 altercation, and had not provided proof of participation in substance abuse treatment. He completed a parenting course and acknowledged that he needed help with parenting. He planned to use his former foster parents as emergency caregivers, although the former foster father had an extensive criminal history, including offenses involving domestic violence and drugs.
Citing the above facts, the social worker testified that there would be a significant risk of harm to the children if they were placed with Christopher. Christopher, himself, testified that he did not expect the court to let him "take [the] boys home today."
There is substantial evidence to support the removal order.
III
The Court Did Not Abuse Its Discretion By Ordering That Christopher's Visits With the Children Be Supervised
"No visitation order shall jeopardize the safety of the child." (§ 362.1, subd. (a)(1)(B).) We review the juvenile court's order for an abuse of discretion. (In re Alexandria M. (2007) 156 Cal.App.4th 1088, 1091, 1095-1096.)
The juvenile court noted that Christopher had completed a parenting class; had regular, appropriate visits with the children; and understood the gravity of Christian's injuries, his dietary regimen, and C.D.'s special needs. In ordering that visits be supervised, the court found that these positive factors were outweighed by several negative ones—Christopher did not understand how drinking affected him, he brought his girlfriend to a visit without authorization, and he initially refused to disclose anything about his girlfriend except her name.
C.D. suffered from reflux. He was hospitalized many times in the first few months of his life for symptoms including fever and vomiting.
The juvenile court did not abuse its discretion by determining that visits should be supervised. Christopher had a history of substance abuse and of violence with women. These converged in March 2008 when he became violent with Christina while under the influence of alcohol. He had not begun treatment for either domestic violence or substance abuse. He planned to use his former foster father as a caregiver, despite the foster father's record of violent and drug-related offenses. These facts demonstrate Christopher's lack of insight into the dangers posed by drinking and violence.
Christopher argues that the Agency originally recommended unsupervised visitation and "inexplicably" changed this recommendation later. Although the detention report recommended unsupervised visits, at the detention hearing the Agency's counsel requested supervised visits. The court ordered that Christopher's visits with C.D. be supervised and that his visits with Christian be unsupervised while Christian remained in the hospital. Once Christian was released from the hospital, visits were to be supervised.
IV
There Is Substantial Evidence to Support the Denial of Reunification Services to Christina in C.D.'s Case
Section 361.5, subdivision (b) sets forth situations in which the juvenile court may deny reunification services. Christina contends that section 361.5, subdivision (b)(5), on which the court relied, was inapplicable to C.D., and that a finding pursuant to section 361.5, subdivision (b)(6) cannot be implied to justify the denial of services, because doing so would violate her due process rights.
Section 361.5, subdivision (b)(5) allows the court to deny a parent reunification services if the court finds, by clear and convincing evidence, "[t]hat the child was brought within the jurisdiction of the court under [section 300, subdivision (e)] because of the conduct of that parent...." (§ 361.5, subd. (b)(5).) This subdivision does not apply to C.D., since he was brought within the court's jurisdiction pursuant to section 300, subdivisions (b) and (j). Section 361.5, subdivision (b)(6) allows the court to deny services if it finds, by clear and convincing evidence, "[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... and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent...." (§ 361.5, subd. (b)(6).)
In a July 2008 report, the Agency recommended that Christina not receive reunification services. The itemized recommendations in the report cited section 361.5, subdivision (b)(5) as the basis. An accompanying notice to Christina stated that at the dispositional hearing, the Agency would recommend "that reunification services NOT be provided to you based either on the allegations of the petition or on other factors in the case (see next page)...." The next page quoted section 361.5, subdivision (b) and listed the situations described in that subdivision that permit the court to deny services. The box next to section 361.5, subdivision (b)(5) was checked. The box for section 361.5, subdivision (b)(6) was not checked.
At the beginning of the dispositional hearing, the court inquired as to whether the Agency sought to deny Christina services pursuant to section 361.5, subdivision (b)(5) and (6). The Agency's counsel responded that "notice was given under [section] 361.5[, subdivision] (b)(5)." The social worker testified that giving Christina services "would not likely prevent the reabuse of these children," an issue relevant to a section 361.5, subdivision (b)(5) finding. In forming this opinion, the social worker noted the following factors: Christina's severe abuse of Christian might have killed him if he had not received treatment; both children had numerous hospital visits over a period of several months while in Christina's care; Christina was inattentive to C.D; Christina had past child welfare referrals and had failed to accept services; and Christina had a history of substance abuse. The social worker added that the children would be unable to protect themselves, even after 18 months of services, because they were very young.
The social worker also testified that denying Christina services would not be detrimental to the children because they had a negative bond with her, as demonstrated by the following facts: At the time of the second poisoning, Christina denied that Christian had ingested poison, although she had many opportunities to disclose what had occurred. If she had told the truth, this might have made a difference in Christian's recovery. Christina eventually admitted that she had poisoned Christian to get Christopher's attention. After the children's removal, Christina made plans to move to Wyoming to start a new life, while Christian and C.D. remained in foster care in San Diego.
In closing argument, the Agency's counsel relied solely on section 361.5, subdivision (b)(5). The children's counsel joined in the Agency's argument. Christina's counsel argued that section 361.5, subdivision (b)(5) did not apply to C.D., and alternatively claimed that Christina had a positive attachment to both children, that she visited regularly, that she had taken advantage of services available in jail, and that she frequently inquired about the children's well-being and medical treatment. The court found that the Agency had not given Christina notice that it would rely on section 361.5, subdivision (b)(6), and proceeded to deny services pursuant to section 361.5, subdivision (b)(5).
The Agency should have given Christina notice that it sought to deny her services pursuant to section 361.5, subdivision (b)(6), and the court should have based its denial on that subdivision. Section 361.5, subdivision (b)(6) allows the court to deny reunification services when a parent has inflicted severe physical harm on the child's sibling, if services for that parent would not benefit the child. As discussed below, section 361.5, subdivision (b)(6) clearly applied in C.D.'s case since Christina inflicted severe physical harm on Christian, C.D. is Christian's sibling, and services for Christina would not benefit C.D. (Ibid.) Section 361.5, subdivision (b)(5), on the other hand, allows the court to deny a parent services for a child who has been physically abused. (Ibid., § 300, subd. (e).) Since C.D. was not the child who was physically abused, section 361.5, subdivision (b)(5) clearly does not apply to him.
There is clearly substantial evidence to support the conclusion that section 361.5, subdivision (b)(6) mandated the denial of reunification services as to C.D. (In re S.G. (2003) 112 Cal.App.4th 1254, 1260-1261.) First, Christina deliberately gave one-year-old Christian poison to drink on two occasions, inflicting life-threatening injuries. She repeatedly failed to disclose what she had done and made multiple inconsistent statements, despite the fact that telling medical personnel what she had done might have informed them of his injuries and thus reduced Christian's suffering. (§ 361.5, subd. (b)(6).) Second, granting Christina reunification services would not benefit C.D. (§ 361.5, subds. (b)(6), (h).) She cruelly and deliberately harmed C.D.'s older brother. Before the inception of this case, Christina demonstrated her lack of concern for C.D. through her inattentiveness during hospital visits and her failure to accept services in connection with child welfare referrals. After the children's removal, she continued to show her indifference by planning to move far away from them. Further, C.D. was so young that even if Christina received 18 months of services, he would be less than three years old, too young to protect himself.
When the prerequisites of section 361.5, subdivision (b)(6) are met, the juvenile court "shall not" order reunification services for the offending parent unless it finds, "by clear and convincing evidence, that reunification is in the best interest of the child." (§ 361.5, subd. (c).) " ' "[O]nce it is determined one of the situations outlined in subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citation.]" ' [Citation.] The burden is on the parent to change that assumption and show that reunification would serve the best interests of the child." (In re William B. (2008) 163 Cal.App.4th 1220, 1227.) In determining whether reunification is in the child's best interest, the court considers the parent's current efforts, fitness, and history; the seriousness of the problem that led to the dependency; the strength of the parent-child and caretaker-child bonds; and the child's need for stability and continuity. (Id. at p. 1228, citing In re Ethan N. (2004) 122 Cal.App.4th 55, 66-67.) A best interest finding requires a likelihood reunification services will succeed—"some 'reasonable basis to conclude' that reunification is possible...." (In re William B., supra, at pp. 1228-1229, citation omitted.)
The record is devoid of evidence that reunification would be in C.D.'s best interest. Christina declined to accept services offered earlier. She was not bonded with C.D. This dependency was precipitated by domestic violence and Christina's deliberate infliction of "extraordinarily serious injuries" on C.D.'s older brother. The juvenile court found that C.D. was even more vulnerable because he was younger and had medical issues. The court noted that Christina denied responsibility for Christian's poisoning and "attempted to... implicate other innocent individuals." It is clear from the record that Christina will be unable to provide C.D. with "permanency and stability throughout the remainder of [his] childhood[]." (In re William B., supra, 163 Cal.App.4th at p. 1229.) There is substantial evidence to support the denial of reunification services. (Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 852-853; Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.)
Christina asks that we strike statements in Christopher's opening brief that she is an "infanticidal woman" who engaged in "infanticidal behavior." Christopher's reply brief makes a similar reference. We deny Christina's request.
In the extreme circumstances of this particular case, it does not violate due process to employ section 361.5, subdivision (b)(6) to justify the denial of reunification services. The record clearly demonstrates that Christina inflicted severe physical harm on Christian, and that services would not benefit C.D. (Ibid.) There is no evidence that services would have been in C.D.'s best interest, and it is inconceivable that Christina could have met her heavy burden of proving the contrary. (§ 361.5, subd. (c); In re William B., supra, 163 Cal.App.4th at p. 1227.)
Furthermore, section 361.5, subdivision (b)(7) allows the court to deny a parent services for a child when it has denied that parent services for a sibling pursuant to section 361.5, subdivision (b)(5). Although the Agency's notice to Christina did not cite section 361.5, subdivision (b)(7), it did cite section 361.5, subdivision (b)(5) as the basis for denying services to her for Christian. Thus, Christina was on notice that the court might deny her services for C.D. if it denied her services for Christian. The court did, in fact, deny Christina services for Christian pursuant to section 361.5, subdivision (b)(5), and she does not challenge that order.
DISPOSITION
Judgment affirmed.
WE CONCUR: HALLER, Acting P. J., IRION, J.