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In re D.D.

California Court of Appeals, Fifth District
Apr 15, 2009
No. F056298 (Cal. Ct. App. Apr. 15, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of Fresno County No. 07CEJ300191-1, Jane Cardoza, Judge.

Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.

Kevin Briggs, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.


OPINION

THE COURT

Before Vartabedian, A.P.J., Wiseman, J., and Cornell, J.

K.G. appeals from an order denying her reunification services with regard to her daughter, D.D. (Welf. & Inst. Code, § 361.5, subds. (b)(5), (6) & (c).) When D.D. was three years old, she suffered a serious brain injury while in the care of appellant’s boyfriend. It is undisputed appellant knew or reasonably should have known her boyfriend was physically abusing D.D. (§ 300, subd. (e).) Appellant contends the juvenile court should have granted her reunification services because there was insufficient evidence to support a denial of services on the alternative grounds (§ 361.5, subd. (b)(5) & (6)) that the court found true. On review, we affirm the court’s denial of services under section 361.5, subdivision (b)(5).

All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

PROCEDURAL AND FACTUAL HISTORY

On July 23, 2007, appellant left her three-year-old daughter in the care of her boyfriend who claimed the child later fell off his back onto a carpeted floor. After the child was brought to a local hospital by ambulance, medical staff diagnosed her with a large acute left subdural hematoma, effacement of the left lateral ventricles and a shift from left to right of her brain contents. She had an emergency craniotomy to evacuate the hematoma. Without medical and surgical intervention, D.D. would not have survived her head injuries.

D.D.’s head injuries were inconsistent with the boyfriend’s explanation of what had occurred. In addition, upon the child’s hospital admission, medical staff noted she had extensive bruising on both of her buttocks and right thigh. The bruising was about one week old and was consistent with spanking.

Appellant nevertheless believed her boyfriend had not abused D.D. and offered no reasonable explanation as to how the child sustained her injuries. Appellant reasonably should have known her boyfriend was physically abusing D.D. due to the child’s extensive bruising. However, appellant claimed she had not observed the bruises.

Appellant pled no contest to these facts in January 2008. Consequently, the Fresno County Superior Court exercised its dependency jurisdiction over D.D. pursuant to section 300, subdivision (e) - severe physical abuse of a child under the age of five. Having so exercised its dependency jurisdiction, the superior court also ordered a specialized psychological evaluation of appellant as well as an attachment assessment of D.D. in which appellant would also participate.

The psychological evaluation and attachment assessment went to the issue of whether appellant should receive reunification services. In particular, because D.D. came within the court’s jurisdiction under section 300, subdivision (e) due to appellant’s negligence, the law prevented the court from ordering services for appellant unless it could find services were likely to prevent reabuse or continued neglect of the child or that failure to try reunification would be detrimental to D.D. because she was closely and positively attached to appellant. (§ 361.5, subds. (b)(5) & (c).)

Between D.D.’s detention in July 2007 and the January 2008 jurisdictional hearing, appellant participated in a court-ordered parenting course, supervised visitation and a mental health evaluation. According to the mental health assessment conducted in August 2007, no treatment was warranted. Appellant’s symptoms of sadness, trouble sleeping, and worry appeared to be expected responses. She acted appropriately with D.D. during supervised visits. Although appellant completed a nurturing parenting program, she stated she did not notice any changes in herself as a result of attending the program. She believed she was already a nurturing parent. Given appellant’s minimal participation in class discussion and limited participation in home practice assignments, the program facilitator could not accurately assess appellant’s knowledge, understanding or implementation of the parenting material presented. Appellant also was evasive and guarded throughout the 14-week class.

Specialized Psychological Evaluation and Attachment Assessment

Psychologist Laura Geiger conducted the specialized psychological evaluation of appellant by completing a clinical interview, psychological testing, and a mental status evaluation of her in late March 2008. Geiger also reviewed case records and the attachment assessment report which issued on June 2, 2008. In turn, the psychologist submitted a written report of her diagnostic impressions and findings in mid-June 2008.

Geiger opined reunification services were unlikely to prevent D.D.’s reabuse or continued neglect by appellant. Although appellant was of average intelligence and did not suffer from any neuropsychological dysfunction, her personality tests were taken in an overly defensive, positive impression management style which rendered the results of those tests “invalid.” She admitted to few difficulties or common shortcomings which most individuals will admit. Although “invalid” meant appellant’s scores were suppressed, one of appellant’s scores, a subscale on treatment rejection, was elevated and would presumably be even higher if appellant were not defensive.

Testing revealed appellant showed no desire to change the status quo. This was particularly significant given the severe damage D.D. suffered from her physical abuse. Appellant’s results suggested she was not willing to make adjustments to her life and might comply with services only because it was court ordered and legally mandated. Once released from court and department supervision, appellant most likely would do simply what she chooses. Appellant likely would be resistant to therapy even if she began treatment. This suggested a poor to guarded prognosis for her ability to follow up with both her own treatment and conjoint therapy with D.D., if appellant were to run into difficulty interacting with the child, and provide the intensive medical care and constant medical attention required now that D.D. was so severely impaired.

Geiger also addressed three nonexclusive factors (§ 361.5, subd. (c)) indicating whether services were unlikely to be successful. In the psychologist’s view, those factors - the failure of the parent to respond to previous services, the fact that the child was abused while the parent was under the influence of drugs or alcohol, and a past history of violent behavior - were inapplicable.

In this regard, section 361.5, subdivision (c) states:

Geiger further offered an opinion, based on her review of the attachment assessment, regarding whether failure to try reunification services would be detrimental to D.D. The attachment assessment, which the court later received into evidence, suggested the child appeared to have an attachment to and positive relationship with appellant. D.D. appeared happy to interact with appellant and did not appear distressed or discomforted in appellant’s presence. However, D.D. had no stranger anxiety and would interact and play with even those whom she never previously met. Those providing services to D.D. had expressed concerns regarding her indiscriminate hugging of strangers and lack of safety awareness, both of which resulted in her being at risk of victimization. Indeed, the therapist conducting the attachment study noted such behavior, as D.D. hugged her and other strangers without awareness of the social and safety implications. How D.D.’s brain injury could affect her recognition, socialization and/or memory must be kept in mind when looking at D.D.’s attachment to appellant, according to the therapist, as the behaviors she displayed with appellant were similar to behaviors she displayed with strangers. Given that D.D was overly responsive to strangers and did not exhibit the normal reluctance seen in a child of her age, Geiger offered an opinion that D.D.’s attachment to appellant was “indiscriminate” and a denial of services would not be detrimental.

According to Geiger, D.D. was not an average child. She had injuries in all four lobe areas of her brain. Of particular concern was the damage done to her frontal lobe which would delay D.D. in learning to plan and sequence information, and understand social relationships. Based on information from the child’s neuropsychologist, D.D. would not progress much beyond her current level of functioning, that of a two year old. Nonetheless, appellant did not appear to understand the severity of D.D.’s injuries and did not appear to accept the possibility D.D. might not progress much beyond where she was cognitively at that point.

The attachment assessment also revealed appellant had an attachment to D.D. and demonstrated adequate and good skills in interacting with D.D. Appellant expressed concern for D.D.’s emotional health in that appellant felt D.D. was confused, wondering why appellant did not take her home. On the other hand, appellant had no behavioral concerns regarding D.D. despite the child’s brain injuries. Appellant felt D.D. would make progress and be successful.

According to the attachment assessment, appellant stated she would be offended if the court did not return D.D. to her care because she was not the one who did wrong by her daughter. As appellant saw it, she was not home when D.D. was injured and therefore she did not hurt her child. Appellant felt she was doing well in her life and demonstrated she was responsible. Appellant also stated she did not learn anything from this experience. She believed she did not do anything wrong and D.D. should not have been removed from her care.

Further, appellant still did not believe that her boyfriend harmed D.D. The two adults continued to live together even while D.D. was hospitalized. Appellant only had her boyfriend move when the department told her D.D. would not be placed back home if appellant continued to live with the boyfriend. Appellant’s inability to accept the boyfriend’s harm to D.D., in the therapist’s view, placed D.D. at risk for future harm as appellant again might believe someone was nice and allow that person to move quickly into her life, as the boyfriend had, without appellant considering the possible risks. The child’s own lack of safety awareness or stranger anxiety made this an even greater concern.

Dispositional Hearing

The superior court eventually conducted its dispositional hearing for D.D. in August 2008. By that stage, the department recommended the court remove D.D. from parental custody, order reunification services for the child’s father, and deny appellant reunification services on two alternative statutory grounds, the previously described section 361.5, subdivision (b)(5) ground and section 361.5, subdivision (b)(6). In relevant part, section 361.5, subdivision (b)(6) authorized the court not to order services for a parent if it found by clear and convincing evidence that the child had been adjudicated a dependent as a result of the infliction of severe physical harm to the child by the parent and it would not benefit the child to pursue reunification services with the offending parent. Also, denial of services would be appropriate under section 361.5, subdivision (b)(6) unless the court found reunification was in the child’s best interests. (§ 361.5, subd. (c).)

Appellant testified in opposition to the department’s recommendation at the August hearing. She acknowledged until “[j]ust recently” she believed what happened to D.D. was an accident. She came to the realization D.D. was physically abused after recently re-reading “the reports” and realizing she was “very badly” hurt. Before that, she claimed she was in the denial and shock stage and it was hard to believe and accept that D.D. could have been injured in this way. She had “learned to be more careful and make sure who I leave her with.”

Appellant visited with D.D. once a week for one hour and attended the child’s physical therapy appointments. Appellant also participated in the therapy when the physical therapist wanted her to help out. D.D. was always excited to see appellant and said she (D.D.) missed appellant. D.D. was very attached to appellant and wanted to sit in her lap all the time. D.D. also asked appellant “when will I come home” and told appellant she missed her.

Regarding D.D.’s educational abilities, appellant testified the child was in a “special ed” class and was doing well. “[T]hey can’t tell how far she’ll progress, but she’s doing fine and needs more therapy to see what happens. Appellant would “make sure she’s in the right class whether it’s special ed or regular class.” In appellant’s view, D.D. still needed “a little bit of speech therapy” which she was receiving at the school she attended.

Asked to describe the nature of D.D.’s injuries and how those injuries impair D.D., appellant testified D.D. had a subdural hematoma injury which impaired her vision “a little bit. She might need surgery.” “[S]ometimes she bumps into things because of her patch in her right eye.” Also, D.D. had trouble with her balance. “[A]t first she couldn’t walk. She had to use a little walker. And now she can walk on her own, but still needs more therapy to get her balance a hundred percent.” Appellant understood because D.D. suffered an injury to the left side of the brain it made her right side weak. She later testified doctors were not certain how much further D.D. would progress but that she (appellant) was “hoping.”

Appellant further testified she did not keep in contact with her boyfriend. She admitted, however, that he came back in March 2008 to the home they previously shared and they lived together for a week in March. Appellant first testified the boyfriend returned from military training and said he wanted the house back so she decided to move out. She later testified his return was unexpected and that she told him either he had to move out or she had to move out. Three or four days into that week, she told a police detective who came to the house that the boyfriend was not there when in fact he was living there. She initially did not tell the detective the truth because she was scared the police wanted to arrest her and to try and make her say something to make her look guilty and arrest the boyfriend. She later called the detective to tell him she did not tell the truth. She left a message on his voice mail. She added it took her approximately a week to pack up her things and move. She moved in with her father and did not have contact with the boyfriend since then.

In March, she did not believe the boyfriend had abused D.D. Appellant later contradicted herself and testified that she knew in March 2008 that he had hurt D.D. Yet, she believed, as of the August 2008 hearing, that D.D.’s bruises could very well have been accidentally caused through play activities.

Finally, appellant denied D.D. was overly friendly with strangers. According to appellant, D.D. had always been friendly and liked to give hugs.

After closing arguments, the court determined appellant made minimal progress towards alleviating or mitigating the causes of D.D.’s out-of-home placement and removed the child from parental custody. The court ordered reunification services for the child’s father but denied them to appellant under both section 361.5, subdivision (b)(5) and (6). In particular, the court found by overwhelming evidence that the information contained in Dr. Geiger’s report and the attachment assessment was persuasive. It also specifically found services would not likely prevent reabuse or continued neglect of the child and the denial of services would not be detrimental to the child.

DISCUSSION

Appellant contends the court’s decision to deny her reunification services under both subdivision (b)(5) and (6) of section 361.5 was not supported by substantial evidence. We conclude the court properly denied appellant reunification services under section 361.5, subdivision (b)(5), as we will discuss below. Because reunification services need not be provided to a parent when the court finds true any of the 14 exceptions contained in section 361.5, subdivision (b), we do not address her multiple arguments regarding the denial of services pursuant to section 361.5, subdivision (b)(6).

It is undisputed that D.D. came within the superior court’s jurisdiction under section 300, subdivision (e) - that is, D.D. suffered physical abuse when she was less than five years old - due to appellant’s negligence. Under these circumstances, the law, as stated in section 361.5, subdivision (b)(5), authorizes the superior court not to order reunification services for such a parent. However, the law does not stop there. Subdivision (c) of section 361.5 (subdivision (c)) prohibits a court from granting reunification services in a case where section 361.5, subdivision (b)(5) applies, unless it can find 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 was closely and positively attached to the offending parent.

Appellant admits section 361.5, subdivision (b)(5) is applicable to her. Yet, she claims there was insufficient evidence to support the court’s additional findings that reunification services would not likely prevent reabuse or continued neglect of the child and the denial of services would not be detrimental to the child. We conclude appellant’s argument is meritless.

To begin, we review the court’s decision regarding the factors in subdivision (c), not for substantial evidence, but for abuse of discretion. Once it is determined one of the situations outlined in subdivision (b) applies, the general rule favoring reunification (see § 361.5, subd. (a)) is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. (Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 164.) As previously stated, subdivision (c) directs the court not to grant services in a situation described in subdivision (b)(5) unless it made specific findings that either reunification services were likely to prevent reabuse or continued neglect of the child or the denial of services would be detrimental to the child. In other words, subdivision (c) grants the court very limited discretion to nevertheless grant services. (See Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96, fn. 6.) Thus, we review the court’s decision under subdivision (c) to determine whether the court abused that discretion. The fact that the superior court in this case affirmatively found reunification services would not likely prevent reabuse or continued neglect of the child and the denial of services would not be detrimental to the child does not change the standard of our review.

Appellant also overlooks the point that it was her burden to persuade the court to exercise its discretion under subdivision (c) and grant her services despite the fact her conduct caused D.D. to suffer severe physical abuse (§ 361.5, subd. (b)(5)). (Raymond C. v. Superior Court, supra, 55 Cal.App.4th at p. 163; see also Mardardo F. v. Superior Court (2008) 164 Cal.App.4th 481, 492.) Although the department had the statutory duty to investigate and present evidence about the prognosis for reunification, it was not required to prove services would be unsuccessful. (Raymond C. v. Superior Court, supra, 55 Cal.App.4th at p. 164.) Rather, it was up to appellant to persuade the court that reunification services were likely to prevent D.D.’s reabuse or continued neglect or that the denial of services would be detrimental to D.D.

Instead, appellant focuses on the absence of certain factors she claims the court was obligated to consider, criticizes the expert opinions contained in the specialized psychological evaluation and attachment assessment, and emphasizes her trial testimony. None of these arguments is persuasive. Appellant essentially asks this court to reweigh the evidence. However, we may not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.) Issues of fact and credibility are matters for the trial court alone. (Ibid.)

On the issue of factors stated in subdivision (c), we observe the following. As previously quoted in footnote two of this opinion, the third paragraph of subdivision (c) sets forth a nonexclusive list of factors indicating that reunification services are unlikely to be successful. The list includes but is not limited to: the failure of the parent to respond to previous services, the fact that the child was abused while the parent was under the influence of drugs or alcohol, a past history of violent behavior, or testimony by a competent professional that the parent’s behavior is unlikely to be changed.

Appellant argues it is significant that none of the first three factors - the failure of the parent to respond to previous services, the fact that the child was abused while the parent was under the influence of drugs or alcohol, a past history of violent behavior - was applicable to her case. In fact, it is arguable the first factor - the failure of the parent to respond to previous services - did pertain in this case. Appellant overlooks the court-ordered parenting class she attended, as well as minimal to limited participation, her evasive and guarded behavior throughout the course, and her own admission that she did not notice any changes in herself as a result of attending the program. In any event, the inapplicability of any of these factors does not compel a different result here. The absence of a negative does not make a positive. (In re Ethan N. (2004) 122 Cal.App.4th 55, 66.)

The same paragraph of subdivision (c) further states the court may consider the fact that a parent or guardian is no longer living with an individual who severely abused the child in deciding reunification services are likely to be successful, provided the court considers any pattern of behavior on the part of the parent that has exposed the child to repeated abuse. Relying on her own testimony that she no longer lived nor had contact with D.D.’s abuser, appellant argues the superior court should have factored this evidence into its analysis. Setting aside whether the language of subdivision (c) in this regard is discretionary or mandatory, appellant fails to affirmatively establish that the court did not consider her testimony. Once again, appellant disregards the superior court’s exclusive authority to weigh the evidence before it and judge credibility. (In re Laura F., supra, 33 Cal.3d at p. 833.) Here, the superior court expressly found the evidence contained in the specialized psychological evaluation and the attachment assessment to be overwhelming.

Having reviewed the record as summarized above, we conclude the superior court did not abuse its discretion under subdivision (c) in reaching its decision to deny appellant reunification services under section 361.5, subdivision (b)(5). The evidence before the court compelled neither a finding that reunification services for appellant were likely to prevent D.D.’s reabuse or continued neglect nor one that the denial of services for appellant would be detrimental to D.D.

DISPOSITION

The order denying appellant reunification services is affirmed.

“The failure of the parent to respond to previous services, the fact that the child was abused while the parent was under the influence of drugs or alcohol, a past history of violent behavior, or testimony by a competent professional that the parent's behavior is unlikely to be changed by services are among the factors indicating that reunification services are unlikely to be successful. The fact that a parent or guardian is no longer living with an individual who severely abused the child may be considered in deciding that reunification services are likely to be successful, provided that the court shall consider any pattern of behavior on the part of the parent that has exposed the child to repeated abuse.”


Summaries of

In re D.D.

California Court of Appeals, Fifth District
Apr 15, 2009
No. F056298 (Cal. Ct. App. Apr. 15, 2009)
Case details for

In re D.D.

Case Details

Full title:In re D.D., a Person Coming Under the Juvenile Court Law. FRESNO COUNTY…

Court:California Court of Appeals, Fifth District

Date published: Apr 15, 2009

Citations

No. F056298 (Cal. Ct. App. Apr. 15, 2009)