Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWJ001007, Michael J. Rushton, Judge.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
In this child dependency proceeding, we are called upon to determine whether the juvenile court abused its discretion in denying reunification services. We conclude the juvenile court considered all the relevant factors in determining the children’s best interests pursuant to Welfare and Institutions Code section 361.5, subdivision (c), and we uphold its finding that providing reunification services here would not serve that interest.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
II. FACTUAL AND PROCEDURAL BACKGROUND
The dependency proceedings in this case involve appellant M.M. (Mother) and her four children, G.D., age 12; A.D., age 11; C.N., age six; and X.N., age four. R.D. (not a party to this appeal) is the father of G.D. and A.D. and the stepfather of C.N. and X.N. In December 2009 the Riverside County Department of Public Social Services (Department) filed a petition alleging C.N. had suffered serious physical harm (§ 300, subd. (a)), the other children were at risk of child abuse (§ 300, subd. (j.)), and all the children were at risk because of Mother’s and R.D.’s failure to protect (§ 300, subd. (b)).
This is the second time the juvenile court has established jurisdiction over Mother’s children. The first time was in 2002, when the court sustained allegations against Mother under section 300, subdivisions (b) and (f), finding she had negligently caused the death of her then infant child, Y.N., by her failure to follow medical directives. After an initial period of court-ordered reunification services, including anger management, parenting education, counseling for Mother, and parenting education and a domestic violence program for R.D., the court awarded joint custody to both parents, with primary physical custody to R.D. and visitation for Mother. The dependency was terminated following the filing of family law orders.
The incidents leading up to the current proceedings occurred in December 2009, when the Department received a report that Mother had hit C.N. in the face with a studded leather belt, which left a one inch long by one inch wide reddish-purple mark on the side of his face.
C.N. told a social worker that Mother frequently hit him with a belt. C.N. also told the social worker that he had seen Mother threaten R.D. with a knife. Another time, Mother had punched R.D., giving him a black eye, because he was drunk.
G.D. told the social worker that Mother often used a belt to hit the children and had knocked the children’s heads together when they misbehaved. G.D. frequently witnessed her parents fighting and at times felt that she should call the police to intervene. A.D. also said he witnessed numerous domestic violent episodes between his parents. He stated that Mother hit C.N. with a belt and occasionally hit X.N. with a belt as well.
A physician’s examination supported C.N.’s account of the incident and confirmed the bruises on C.N.’s body were consistent with injuries inflicted with a belt.
In early December 2009, the Department removed the children from Mother’s and R.D.’s custody, and the juvenile court found that probable cause supported their detention.
The Department filed a jurisdiction/disposition report in late December 2009. In the report, the Department recommended denying reunification services to Mother pursuant to section 361.5, subdivision (b)(4), which states that reunification need not be provided when the court finds the parent has caused the death of another child-in this case, Y.N.-through abuse or neglect.
To support its allegations of physical abuse, the report included the children’s statements taken after they were removed from Mother’s custody. G.D. reported she was afraid when her mother lost her temper; Mother frequently called her derogatory and explicit names; both Mother and R.D. commonly used profanity around the children; R.D. drank heavily and became violent when drunk; and that Mother often slapped her in the face when she did not do her housework or talked back. A.D. stated that, although he loved his mother, she hurt the children and left bruises when she hit them with a belt, and that he was “a little scared” when he saw his parents fight. C.N. reported that if he had three wishes, one would be that Mother and R.D. would stop hitting him. He stated that when he witnessed his mother chasing R.D. with a knife, he hid under the table and was afraid Mother would kill him, and that Mother and R.D. frequently hit him all over his body and head.
In January and February 2010, the Department filed addendum reports. The January report stated Mother had visited the children and regularly spoke to them over the telephone. Mother had also enrolled in parenting and anger management classes and was on a waiting list for counseling. In the February report, the three eldest children stated that, although they enjoyed visiting their parents, they still did not feel safe returning to Mother’s home. G.D. did not feel safe being placed in their maternal great-grandmother’s home, where Mother would have unfettered access to them. G.D. said: “Really I don’t believe that they will stop hurting us. They will take the classes and do what you tell them to do, but they won’t learn anything.... Because they did everything before [after Y.N.’s death] and we are still being hit.... This is why I really don’t know if Grandma Thelma can protect us from them.”
At the contested jurisdiction hearing in late February 2010, the juvenile court sustained the allegations under section 300, subdivisions (a), (b), (g), and (j) in the amended petition.
The allegations under section 300, subdivision (g) related only to the father of C.N. and X.N.
In March 2010, the court commenced the contested disposition hearing, and all of the Department’s reports were admitted into evidence. The court took judicial notice that in 2002 the juvenile court had sustained an allegation that Mother had caused her child’s death through abuse or neglect, pursuant to section 300, subdivision (f).
Both parties submitted to stipulated testimony that the children loved their mother and wanted her to have a second chance. The visitation monitor testified that she had taken the children to visit Mother and R.D. about eight times, and the children were always excited to see them. The social worker testified and confirmed what was in her reports: Although G.D. loved her parents, she was doubtful about whether they would alter their abusive behavior; A.D. was concerned about Mother yelling at him and hitting him; C.N. stated he was afraid of being hit and wanted to go live with his father.
Mother’s counsel conceded that the juvenile court could deny reunification services but requested reunification, because Mother believed it was in the “best interest” of her children pursuant to section 361.5, subdivision (c).
The juvenile court denied Mother reunification services. It stated: “I believe that it would not be appropriate, given [section 361.5, subd.] (b)(4), for the Court to grant the mother additional services when she has been through such a horrific and tragic event involving another child, she has been given services and an opportunity to improve her life, and she did not take advantage of those. Her parenting did not improve, and she has now subjected these children to the particular kind of terror that they have had to live through, so I will not be giving her services in this matter.”
III. STANDARD OF REVIEW
We do not disturb the juvenile court’s determination that reunification services do not best serve the children’s interests under section 361.5, subdivision (c), absent an abuse of discretion. Moreover, as long as there is substantial evidence to support the juvenile court’s findings-upon which it based its best interests determination-we will not sustain an allegation challenging the sufficiency of evidence supporting those findings. (In re Ethan N. (2004) 122 Cal.App.4th 55, 64-65 (Ethan N.) [the parent has the burden of showing, by clear and convincing evidence, that reunification is in the best interests of the child]; § 361.5, subd. (c); In re William B. (2008) 163 Cal.App.4th 1220, 1227 (William B.).)
IV. DISCUSSION
The Welfare and Institutions Code reflects a strong policy favoring the maintenance of family relationships. (Ethan N., supra, 122 Cal.App.4th at p. 63.) For this reason, section 361.5, subdivision (a) directs the juvenile court to order reunification services for the child and child’s parents whenever a child is taken from a parent’s custody. (Ethan N., supra, at p. 63.)
There are, however, exceptions (or “bypass provisions”) to this mandate. One such exception is found in section 361.5, subdivision (b)(4), which provides that reunification services need not be provided to a parent when the court finds, by clear and convincing evidence, “[t]hat the parent or guardian of the child has caused the death of another child through abuse or neglect.” Once it is determined that a bypass provision applies, ‘“the general rule favoring reunification is replaced by a legislative assumption that offering [reunification] services would be an unwise use of governmental resources. [Citation.]’” (Ethan N., supra, 122 Cal.App.4th at p. 65.)
Here, the juvenile court took judicial notice of the sustained allegation that Mother had caused the death of her infant daughter through neglect eight years earlier. Mother concedes that she falls under section 361.5, subdivision (b)(4), but she contests the juvenile court’s application of section 361.5, subdivision (c), to her case. Section 361.5, subdivision (c), provides the court “shall not order reunification for a parent” who falls within section 351.5, subdivision (b)(4), “unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.” The “best interest” standard “‘is an elusive guideline that belies rigid definition. Its purpose is to maximize a child’s opportunity to develop into a stable, well-adjusted adult.’ [Citation.]” (Ethan N., supra, 122 Cal.App.4th at p. 66.)
With that overarching goal in mind, courts have drawn upon a number of relevant factors to make the best interest determination. Among them are the gravity of the problem that led to the dependency, the parent’s current efforts and fitness, the parent’s history, the strength of relative bonds between the dependent child and both his parent and caretakers, and the child’s need for stability and continuity. (Ethan N., supra, 122 Cal.App.4th at pp. 66-67.)
Mother argues in her opening brief and again in her reply brief that the juvenile court abused its discretion because it failed to consider all the “Kimberly F. factors” in determining the children’s best interests. (See, generally, In re Kimberly F. (1997) 56 Cal.App.4th 519, 530-533 (Kimberly F.).) Mother touts these factors as the “long-accepted test for the best interests of the child, ” and faults the Department for not citing the case in its brief. First, Mother fails to elaborate as to which of the three factors-(1) gravity of the problem that led to the dependency, (2) strength of the relative bonds between child and both parent and caretaker, and (3) the degree to which the problem may be ameliorated or has been removed-the court did not consider. Second, although certainly not irrelevant considerations in this case, the Kimberly F. factors, as a group, are tailored more to evaluate motions to modify juvenile court orders under section 388, which are predicated on changed circumstances. (Kimberly F., supra, 56 Cal.App.4th at p. 533.) Thus, there is nothing talismanic about this triad of considerations when it comes to determining reunification under section 361.5, subdivision (c). In fact, the leading case in this area, Ethan N., supra, 122 Cal.App.4th at pp. 64-65, does not limit its consideration to these factors and accords little weight to the final two. In sum, even assuming that the juvenile court did not consider one or more of these factors-which we do not believe it did-it did not automatically err. Nor is it wrong, of course, in considering or weighing more heavily factors not on this list.
In this case, the problem which led to this dependency was Mother’s abuse of her children, resulting in injuries. Mother argues this problem was not “incapable of being ameliorated within the reunification period.” Mother misapprehends her burden. As someone who was responsible for another child’s death, she must “affirmatively show that reunification would be in the best interest of a surviving child, ” not that reunification is “not incapable of” being in the best interest of the children. (Ethan N., supra, 122 Cal.App.4th at p. 66.) At the very least, this would require a showing, by clear and convincing evidence, that Mother was no longer neglectful or abusive.
In regard to the first dependency, Mother attempts to distinguish her neglect from the neglect and abuse that caused the deaths of children in other similarly situated cases, namely, Ethan N., supra, 122 Cal.App.4th 55, and In re Mardardo F. (2008) 164 Cal.App.4th 481 (Mardardo F.), suggesting that her behavior was comparatively not as grave and did not “shock[] the conscience.” In Ethan N., one of the mother’s children died of suffocation due to a wad of paper lodged deep in his throat. (Ethan N., supra, at p. 61.) The child “also had severe injuries to his rectum and anus, 12 broken ribs at various stages of healing, injuries to his face, a torn frenulum, and a contusion to the back of the head.” (Ibid.) Although she did not directly inflict the injuries, the mother was found to have caused the infant’s death due to her neglect. (Id. at p. 59.) In Mardardo F., the father was denied reunification with his own child because he had raped and killed a young girl while he was still a minor. (Mardardo F., supra, at p. 484.)
In this case, Mother failed to follow medical directives given by the hospital when her infant was sick. The juvenile court took judicial notice that the 2002 petition alleged Mother had lain the infant stomach down on a pillow, with a pacifier in her mouth, covered her body with two adult blankets, and covered her head with another blanket. It appears the infant stopped breathing and went into full cardiac arrest.
Although Mother’s neglect was not as viscerally revolting as that in Ethan N., in which the mother did nothing to prevent the severe abuse being meted out on her child, we cannot accept that the law contemplates such distinctions or that such distinctions should weigh very heavily into the juvenile court’s best interest analysis. After all, the text of section 361.5, subdivision (b)(4) requires only that the parent caused the death of another child. There is no culpability or conviction requirement. In fact, before 1997, the law did indeed require that the parent be convicted of causing the death of another child, but that requirement was later deleted to “expand the scope of children to whom the section 361.5[, ] [subdivision] (b)(4) bypass provision may apply....” (Mardardo F., supra, 164 Cal.App.4th at pp. 490-491.) Thus, the law in this area has evolved to be more “child protective” and less forgiving to parents who have caused, in any abusive or negligent way, the death of another child. (Mardardo F., supra, 164 Cal.App.4th at p. 491.)
Accordingly, we cannot accept Mother’s argument that the death of her child is discernibly less grave or shocking than that in Ethan N. or Mardardo F. The gratuitous death of a child is in and of itself shocking to the conscience; indeed, “[i]t is difficult to imagine any problem more grave than the previous death of another child caused by abuse or neglect.” (Ethan N., supra, 122 Cal.App.4th at p. 66, italics added.)
In regards to the next factor-the parent’s current efforts and fitness-Mother notes that, on her own, she has completed a parenting program, is well into her domestic violence program, and has completed half of her individual counseling sessions. Although we laud her recent accomplishments and motivation to become a better parent, we must not ignore that the “previous death of another child is combined with a long history of... family violence [as well as] the abuse and neglect of other children even after extensive reunification services had been provided.” (Ethan N., supra, 122 Cal.App.4th at pp. 66-67.) Mother received reunification services from December 2002 to July 2003, after G.D. and A.D. were taken out of her custody following Y.N.’s death. Yet, even after experiencing such a tragic loss and receiving formal services, Mother failed to reform her behavior. The court sustained allegations that she continues to engage in domestic violence in front of the children and administer inappropriate discipline by whipping the children with belts and bashing their heads together.
Mother contends, however, that because eight full years have passed since she previously participated in services and her family has grown from two to four children, “[i]t is not unreasonable for [her] to require additional classes.” We are unconvinced by this argument. The focus of reunification services is to remedy the problem that led to the removal of the children, which, in this case, was abuse (as to the second dependency) and neglect (as to the first). (In re Michael S. (1987) 188 Cal.App.3d 1448, 1464.) To accept an argument that these services did not teach Mother to use nonabusive parenting strategies as her family grows would open the door to the absurd prospect of providing periodic governmental services as the children age, new children are born, or when there is really any change in family structure. (See Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 752-753 (Deborah S.).) This would not only waste state resources but also severely undermine the children’s interest in continuity and stability. (In re Christina A. (1989) 213 Cal.App.3d 1073, 1079-1080 (Christina A.).)
We believe, as did the juvenile court, there is better guidance in the text of section 361.5, subdivision (c): “The failure of the parent to respond to previous services, ... [and] a past history of violent behavior... are among the factors indicating that reunification services are unlikely to be successful.” (Italics added.) G.D.’s statement supports that position and raises serious doubts as to whether another round of services will help her mother: “I’m afraid of my mom and dad. I don’t feel safe living with them at this time. Really I don’t believe that they will stop hurting us. They will take the classes and do what you tell them to do, but they won’t learn anything.... Because they [received services and took classes] before and we are still being hit. I have had to grow up fast, at home I would take care of my brothers, and if I complained they would hit me. My mom has called me the b-word, and slapped me in the face. My dad has pulled me by the hair and used the belt if the house is not clean when he comes home from work. I just don[‘t] feel safe around them.” (Italics added.)
Mother argues the next factor-the strength of relative bonds between child and both mother and caretaker-weighs heavily in her favor because the children have spent the majority of their lives with her, have stronger bonds with her, enjoy their visits with her, are no longer afraid of her, and wish to reunite with her.
Like the Department, we cannot find where in the record-and Mother does not cite the record when making these contentions-the children have expressed they are no longer afraid of her or wish to return to her care. In February 2010, a month before the dispositional hearing, the three eldest children are reported to have said they are afraid of Mother’s anger. G.D. stated she did not feel safe living with her parents at this time, A.D. said he would like to live with either of his grandmothers, and C.N. said he would like to live with his grandmother or father.
Nevertheless, we will assume, arguendo, that all of Mother’s contentions are true. Even so, as the juvenile court correctly recognized, the standard in this case is not whether the children love their parents but whether or not reunification is in their best interest. As such, the children’s love is only one of a number of factors that bear on the best interest determination, and it is an increasingly less important factor where a parent has caused death to another child by abuse or neglect and the risk of parental recidivism is great. (Deborah S., supra, 43 Cal.App.4th at p. 751.)
In Ethan N., as here, the child and her mother interacted normally during their weekly visits, and the child cooed and smiled at both the caretaker and the mother. (EthanN., supra, 122 Cal.App.4th at p. 67.) However, the court found there could be no presumption in favor of a natural parent-child relationship once the parent was found to have caused the death of another child and that ‘“the enormity of a death... swallows up almost all, if not all, competing concerns [favoring reunification].’” (Id. at pp. 68-69.) Similarly, in William B., supra, 163 Cal.App.4th at p. 1223, the court reversed the juvenile court’s order granting reunification services to a drug-abusing parent: “Three times is enough. The juvenile court improperly focused on the children’s love for their mother rather than any realistic chance they would find permanency and stability with her.”
Additionally, we cannot give too much weight to the fact that the children have spent the majority of their lives with Mother, with whom they have a strong bond. In In re Stephanie M. (1994) 7 Cal.4th 295, 324-325, the Supreme Court chastised the appellate court, in reviewing a motion for a change of placement, for giving too much weight to blood ties and the length of the relationship rather than the child’s need for stability.
The children’s love for Mother was uncontroverted. However, as stated earlier, once section 361.5, subdivision (b) is found to apply, “the general rule favoring reunification is replaced by a legislative assumption that offering services would be... unwise....” (Ethan N, supra, 122 Cal.App.4th at p. 65.)Because the Legislature has decided that parents who fall under section 361.5, subdivision (b) are unlikely to benefit from reunification services, courts are directed to give more consideration to a child’s interest in continuity and stability rather than family unification. (Ethan N., supra, at p. 66; Christina A., supra, 213 Cal.App.3d at pp. 1179-1180.) The parent is burdened with the task of rebutting that legislative assumption by clear and convincing evidence. (Ethan N., supra, at pp. 66-67.)In this case, it is clear that Mother did not meet her burden. These four young children have had to live through tremendous abuse, and there is considerable evidence that further services will not help. Even after the tragic death of her daughter, Mother failed to take advantage of the opportunity to reform her behavior. She has continued to use inappropriate discipline and expose the children to bouts of domestic violence. Accordingly, we find that the juvenile court had ample justification to not weigh the children’s love for their parents and their respective bonds as heavily in its best interest calculus.
Finally, Mother argues that to maintain continuity and stability, the court should have ordered reunification services, because there is a possibility the children may not be able to remain together as a sibling set. Although the possibility that the grandmother will not be able to provide a home and the children’s fathers will fail to reunify is only speculation, the possibility that the children may be separated must be considered in making a best interest determination. In this particular case, the juvenile court has decided that despite the slim possibility of separation, reunification would not be in the best interest of the children, and there is substantial evidence to support its finding.
“The cases in which a parent who has been responsible for the death of a child through abuse or neglect will be able to show that reunification will serve the best interest of another child or other children will be rare.” (Ethan N., supra, 122 Cal.App.4th at 68.) Mother has not demonstrated to us that her case is one of those rare cases. Rather, we have found there is substantial evidence supporting the juvenile court’s determination that reunification would not be in the best interest of the children, namely, the prior death of Y.N. because of Mother’s neglect, the ineffectiveness of earlier services, Mother’s long history of abuse, and the reports of domestic violence. Accordingly, the juvenile court did not abuse its discretion.
IV. DISPOSITION
The order of the juvenile court denying reunification services to Mother is affirmed.
We concur: MCKINSTER, J., KING, J.