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In re F.R.

California Court of Appeals, Fourth District, First Division
Apr 21, 2009
No. D054155 (Cal. Ct. App. Apr. 21, 2009)

Opinion


In re F.R. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JULIE R., Defendant and Appellant. D054155 California Court of Appeal, Fourth District, First Division April 21, 2009

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. NJ13998 A-E, Harry M. Elias, Judge.

McDONALD, J.

Julie R. appeals the dispositional judgment in the dependency case of her children F.R., Dominique R., Jeremiah R, Daniel W., and E.S. Julie contends the juvenile court erred by denying her reunification services. We affirm.

BACKGROUND

Julie has Child Protective Service (CPS) histories in Colorado and Maryland. In 2003 and 2004 her boyfriend, Dwayne W., molested her oldest child, 14-year-old Brittany. Brittany was removed from Julie's custody then returned to her custody in September 2005. In 2007 there were two substantiated reports that Julie neglected the children. According to one of those reports, she disappeared, leaving the children with her boyfriend, Andrew S., because she suspected he was having a romantic relationship with Brittany. In early 2008 Julie abandoned Brittany and moved to San Diego with the other children.

In San Diego, Julie and the children lived with Julie's sister and brother-in-law, Sharon and Tim M. Julie appeared to be pregnant but repeatedly denied it when Sharon and Tim inquired. Early in the morning of July 27, 2008, Sharon and Tim heard a baby cry for about five minutes. They thought it was 18-month-old E.S., who shared a room with Julie. When Sharon and Tim saw Julie later that morning, she no longer appeared pregnant. Julie denied she had given birth.

On July 28, 2008, Tim found a spot on the floor of Julie's room. It looked like blood. On July 29 he found bloody rags, a bloody diaper, and human tissue in the trash. On July 30 he called the police. When police officers arrived at the home, Julie led them to her room and retrieved a knapsack from the closet. The body of a newborn boy was in the knapsack.

Julie said she had given birth while E.S. was asleep in the room with her. Julie said that after the baby was born they both fell asleep. When she woke up he was turning blue and not breathing. She said, "I put my hand over his mouth and let him die." She wrapped his body in a towel and put him in the closet. She admitted the death was intentional. She was arrested and charged with first degree murder.

On August 4, 2008, the San Diego County Health and Human Services Agency (the Agency) filed dependency petitions for 15-year-old F.R., 11-year-old Dominique, nine-year-old Jeremiah, five-year-old Daniel, and E.S. based on the baby's death (Welf. & Inst. Code, § 300, subd. (f)). The children were detained in foster care. At the jurisdictional and dispositional hearing in October, the court entered true findings on the petitions, removed the children from Julie's custody, and denied her reunification services pursuant to section 361.5, subdivision (b)(4). It ordered reunification services for E.S.'s father, set a six-month review hearing for E.S., and ordered permanent plans of another planned permanent living arrangement for the other children. Finally, it authorized continuing visitation between Julie and the children "as long as it [was] not unduly detrimental to the [children] and allowed by the facility" where Julie was housed.

All statutory references are to the Welfare and Institutions Code.

DISCUSSION

Section 361.5, subdivision (b) provides that "[r]eunification services need not be provided to a parent... when the court finds, by clear and convincing evidence, [¶]... [¶] [t]he parent... has caused the death of another child through abuse or neglect...." (§ 361.5, subd. (b)(4).) If the juvenile court determines that section 361.5, subdivision (b)(4) applies, it "shall not" order reunification services for the parent unless it finds, "by clear and convincing evidence, that reunification is in the best interest[s] 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.) Rarely will "a parent who has been responsible for the death of a child through abuse or neglect... be able to show that reunification will serve the best interest[s] of... other children.... 'The enormity of a death arising out of... child abuse swallows up almost all, if not all, competing concerns.' " (In re Ethan N. (2004) 122 Cal.App.4th 55, 68-69, quoting In re Alexis M. (1997) 54 Cal.App.4th 848, 853, fn. 5.)

Julie contends reunification was in the children's best interests because of her bond with them, their continued contact with each other, and her acknowledgment of wrongdoing. She also claims she cared for the children appropriately for years and is not mean or vicious, like the parents in In re Ethan N., supra, 122 Cal.App.4th 55, In re Alexis M., supra, 54 Cal.App.4th 848, and other cases.

She acknowledges it is unlikely she would be able to reunify with E.S. given the limited reunification period for a child her age.

The older children were bonded with Julie. Considering her CPS history, however, we cannot accept her claim she cared for the children appropriately. We also cannot accept her suggestion she is less culpable than other parents to whom section 361.5, subdivision (b)(4) applies. She intentionally killed a newborn by suffocating him while her young daughter was in the room.

A best interests finding requires a likelihood reunification services will succeed. (In re William B., supra, 163 Cal.App.4th at p. 1228.) "In other words, there must be some 'reasonable basis to conclude' that reunification is possible before services are offered to a parent who need not be provided them. [Citation.]" (Id. at pp. 1228-1229.) There is no evidence in the record Julie will be able to provide the children with "permanency and stability throughout the remainder of their childhoods." (Id. at p. 1229.)

Julie also contends the Agency did not comply with its duty to advise the court how denying services would affect the children. We need not consider this contention, raised for the first time in her reply brief. (In re Tiffany Y. (1990) 223 Cal.App.3d 298, 301.)

Substantial evidence supports the denial of reunification services. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.)

DISPOSITION

The judgment is affirmed.

WE CONCUR: BENKE, Acting P. J., O'ROURKE, J.


Summaries of

In re F.R.

California Court of Appeals, Fourth District, First Division
Apr 21, 2009
No. D054155 (Cal. Ct. App. Apr. 21, 2009)
Case details for

In re F.R.

Case Details

Full title:In re F.R. et al., Persons Coming Under the Juvenile Court Law. v. JULIE…

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

Date published: Apr 21, 2009

Citations

No. D054155 (Cal. Ct. App. Apr. 21, 2009)