Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J226059. A. Rex Victor, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) .
Konrad S. Lee, under appointment by the Court of Appeal for Minor and Appellant.
Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
Brent Riggs, under appointment by the Court of Appeal, for Defendant and Respondent R.C.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Respondent D.P.
OPINION
King, J.
I. INTRODUCTION
Appellant K.P. is an infant girl born in March 2009. She appeals from the juvenile court’s May 13, 2009, dispositional order offering reunification services to her mother R.C. (Mother), with the goal of returning her to Mother’s care. She claims insufficient evidence supports the court’s finding that her best interests would be served by offering Mother the services, in view of an earlier court finding, in dependency proceedings involving her three older half brothers S.B., Ka.B., and Ke.B., that Mother negligently caused the death of Ke.B on July 3, 2008. (Welf & Inst. Code, § 361.5, subds. (b)(4), (c).) We conclude that substantial evidence supports the court’s best interest finding regarding K.P. Accordingly, we affirm the dispositional order.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In January 2009, only two months before K.P. was born, the court granted Mother reunification services for S.B. and Ka.B., after finding the boys’ best interests would be served by offering Mother the services. Like K.P., the boys challenged the order granting Mother the services on the ground insufficient evidence supported the best interest finding. In December 2009, while the present appeal was pending, we issued an opinion rejecting the boys’ appeal on the ground substantial evidence supported the best interest finding for the boys. (In re K.B. (Dec. 14, 2009, E047557 [nonpub. opn.].) For similar reasons, we conclude that substantial evidence supports the court’s separate and subsequent best interest finding for K.P.
We have taken judicial notice of the record and briefs filed in the boys’ appeal in case No. E047557.
II. FACTS AND PROCEDURAL HISTORY
A. Introduction
K.P., the youngest of Mother’s four children, was removed from Mother’s care shortly after her birth in March 2009. At that time, Mother was receiving reunification services for her two older boys, S.B. and Ka.B., and the boys’ appeal of the court’s January 2009 order granting Mother reunification services for the boys was pending. The boys were removed from Mother’s care on July 3, 2008, the day Mother’s other son, Ke.B., died while in Mother’s care.
The facts concerning the present appeal thus necessarily begin with the facts and procedural history underlying the prior and ongoing dependency proceedings for the boys, the circumstances surrounding Ke.B.’s death, and the boys’ prior appeal in case No. E047557. These are described in detail in our nonpublished opinion in In re K.B. (Dec. 14, 2009, E047557) and are recounted in the following section.
B. The Prior Proceedings Involving the Boys
1. Background
S.B. and Ka.B. were born in March 2002 and August 2007, respectively. Ke.B. was born in December 2002, and was five years old when he died while in Mother’s care on July 3, 2008.
Ke.B. was a special needs child. He suffered from “total body involved cerebral palsy,” with “severe contractures of all four extremities,” “poor head control,” and “poor motor skills.” Throughout his life, he was nonambulatory and nonspeaking. He was also slow to eat and slow to respond to feedings. He also suffered from mild asthma. At the age of five, he had the developmental abilities of a five-month-old child.
All three boys first came to the attention of the San Bernardino County Children and Family Services (CFS) on February 12, 2008. That day, the staff at Ke.B.’s special needs school noticed he had recently lost weight, although he was fed twice each day at the school. He also appeared to be lethargic and dehydrated, and was breathing slowly. The staff contacted CFS after they were unable to reach Mother.
CFS was formerly known as San Bernardino County Department of Children’s Services.
Later on February 12, Mother arrived at the school and a social worker and public health nurse spoke to her regarding Ke.B.’s condition. Mother was “very defensive” and fluctuated between crying and displaying angry outbursts toward the social worker. She said Ke.B. had eaten a bowl of oatmeal that morning and drank some fluids. She had not noticed any change in his behavior or weight. She had last taken him to a doctor in August 2007, the same doctor who had been monitoring his condition since his birth. She did not have any contact information for the doctor.
Mother had explored the possibility of having Ke.B. fitted with a gastric feeding tube but had not pursued it. A gastric feeding tube is inserted through a small incision in the stomach, and is used when the patient is malnourished and cannot orally consume enough food in order to maintain body weight.
Mother had not followed through with referrals or doctor appointments required to obtain services for Ke.B. He did not have any special equipment to assist with his disabilities, and he was not receiving any services from California Children Services or Inland Regional Center.
When asked why she had not pursued the services Ke.B. required, Mother said she had only recently moved to the high desert to live with family members and to get away from the boys’ father, who was very violent and on probation for beating her. She had been unable to obtain services due to “changing counties.” She said she was doing the “best she [could]” but the father’s violence did not help.
The boys’ father is not a party to the present appeal. K.P.’s alleged father, D.P., did not appeal from the order granting Mother reunification services for K.P. In a respondent’s brief, D.P. has “taken no position” concerning the present appeal.
Mother and the boys’ father had been married since 2001 and had been in a relationship since 1998. They stopped living together in mid-2007, and Mother moved to the high desert to get away from the father. According to Mother, the boys’ father had never supported them and regularly demanded that Mother pay him one-half of the $763 in monthly social security benefits she received for Ke.B.’s disability. She was receiving no food stamps or cash aid, because the father had discouraged her from applying. She had a restraining order against the father.
S.B. and Ka.B. were placed in temporary shelter care but were returned to Mother’s care on February 15 pursuant to a family maintenance plan. On February 12, Ke.B. was taken to a local hospital in Victorville and was later transferred to Children’s Hospital of Orange County (CHOC) where he could receive a higher level of care. He was admitted to CHOC for “medical/nutrition rehabilitation secondary to severe failure to thrive.” He was released from CHOC to Mother’s care on February 22.
Throughout his stay at CHOC, Ke.B. was “gaining weight well taking good oral feeds,” but at the time of his discharge his weight and nutrition were still not “up to par.” On February 18, CHOC recommended that Ke.B. be fitted with a gastric feeding tube. He was discharged with written “special instructions” that he be seen weekly by his pediatrician, and that a home health nurse visit him twice each week in order to monitor his weight. Immediate medical attention was to be sought if he did not eat, was not gaining weight, or if other symptoms worsened. He was also to be seen at a gastrointestinal and spasticity clinic. There was no signature on the discharge instructions indicating who, if anyone, had received them.
CFS filed petitions for all three boys in February 2008. In March, the juvenile court sustained allegations that Mother had a history of domestic violence with the boys’ father, and an inability to provide adequate or appropriate medical treatment for the boys during times of domestic stress. The boys were declared dependents and remained in Mother’s care pursuant to a family maintenance plan.
CFS believed the children would be safe in Mother’s care because it intended to closely monitor Ke.B.’s medical care, which was its “chief concern,” and ensure that Mother was “following through on all treatments.” It is evident from the record in the boys’ appeal, however, that Mother did not follow through on all recommended treatments for Ke.B., and CFS did not ensure that she did. Ke.B. did not see his pediatrician weekly during the months following his discharge from CHOC, a home health nurse did not visit the home twice each week as CHOC had recommended, and Ke.B. was never fitted with a gastro feeding tube.
On March 25, Mother took Ke.B. to his pediatrician because he was coughing and showing signs of congestion. She scheduled appointments with a gastrointestinal specialist at Loma Linda Medical Center on April 30 and July 1. The record is unclear whether Mother kept the April 30 appointment, but she did not keep the July 1 appointment because she claimed she did not have money for gasoline. A rehabilitation appointment was scheduled for August 5. Ke.B. had a breathing treatment system at home.
Mother became pregnant with K.P. in late June 2008. At that time, she and the boys were living in an apartment in Victorville with her sister, the children’s maternal aunt (Aunt) and Aunt’s six-year-old daughter. A boyfriend of Mother also lived in the apartment until June 2008. D.P., K.P’s alleged father, then began living in the apartment.
2. Ke.B’s Death on July 3, 2008
At 1:16 p.m. on July 3, 2008, Mother called 911 from her apartment and reported that Ke.B. was not breathing. A sheriff’s deputy arrived several minutes later. Mother and others were attending to Ke.B. on the kitchen floor. He was not breathing and was in full cardiac arrest, so the deputy began to administer CPR. Ke.B. was rushed to a local hospital by paramedics, and was pronounced dead at 1:54 p.m. The cause of death was unknown pending an autopsy.
Mother said she had left home around 9:30 a.m. to attend a parenting class and left the three children at home with Aunt. She returned home shortly before noon, and found Ke.B. lying in his bed smelling of feces. As she picked him up to clean him, he appeared to breathe his last breath. Aunt said she left the apartment around noon to buy groceries and returned within an hour. Mother returned to the apartment around 1:00 p.m., while Aunt was putting the groceries away.
When the deputy who responded to the 911 call approached Mother’s apartment, he smelled a strong odor of marijuana smoke coming through the front door. Later, when the deputy walked into the bedroom where Mother said she found Ke.B., he smelled an even stronger odor of marijuana smoke. During an interview, D.P. told the deputy he had been smoking a marijuana cigarette in the bedroom where Ke.B. had been sleeping. Aunt reported that D.P. had been in the bedroom with Ke.B. for around an hour before the child was found. The bedroom door had been closed in order to cut down on noise and allow Ke.B. to sleep.
S.B. and Ka.B. were taken into protective custody on July 3. On July 4, the medical examiner’s office performed an autopsy on Ke.B. but did not issue a report until December 4. The pathologist ruled the death a homicide, and found the cause of death was malnutrition with cerebral palsy a contributing factor. At the time of his death, Ke.B. weighed 15.2 pounds, substantially less than he weighed when he was admitted to CHOC in February 2008.
In the autopsy report, the pathologist wrote: “The decedent had a history of cerebral palsy and intermittent asthma. Autopsy examination shows a severely cachectic male that is far below 3rd percentile in weight and height for his age. There is an overall wasting of subcutaneous and internal fatty tissue, and there are contractures of all extremities. Internal examination also shows mild acute bronchopneumonia. He was admitted to the hospital in February 2008 for severe failure to thrive. His gastrointestinal work up in the hospital was unremarkable. He was able to take oral feeds and gain weight in the hospital. His discharge weight in February 2008 was 20.24 pounds, and his weight on autopsy was 15.2 pounds. Review of medical records reveals that the decedent did not receive consistent medical care. Based on the history, investigation, and autopsy findings, the cause of death is severe malnutrition due to neglect. Contributing factor is cerebral palsy. The mild bronchopneumonia did not cause his death, but is a result of the malnutrition. Manner of death is homicide.”
On July 9, CFS filed subsequent (§ 342) and supplemental (§ 387) petitions for S.B. and Ka.B. These petitions originally alleged that Mother had negligently caused the death of Ke.B. by leaving him in the care of “irresponsible adults” (§ 300, subd. (f)) and the circumstances of Ke.B.’s death placed the other two boys at risk of abuse or neglect (§ 300, subd. (j)). The jurisdictional and dispositional hearings were continued several times due to delays in the issuance of the autopsy report. Both hearings were ultimately held on January 9, 2009. Meanwhile, CFS recommended reunification services for Mother and the boys’ father.
Mother was ordered to drug test on July 10, but declined to do so, explaining she knew the test would be positive for marijuana because she had begun smoking soon after Ke.B.’s death. She tested positive for marijuana on July 31, August 28, and September 8.
On July 30, the social worker observed: “A culture exists in [Mother’s] home centering on partying, smoking marijuana cigarettes, loud music, and lots of visitors and socializing on the part of [Mother] and [Aunt]. [Mother] appears not to understand the seriousness of the home’s deficits, or her lifestyle.” Still, the social worker noted: “[M]uch progress has been made... in the areas of obtaining beds, additional clothing, getting the gas turned on, and several other related areas of providing physical necessities or comforts.”
S.B. and Ka.B. were healthy, developing normally, and had adjusted well to the foster home in which they were placed on July 3. Mother was consistently maintaining her visitation schedule, and her weekly supervised visits with the boys were going well. S.B. enjoyed visiting Mother, and the children’s caretaker expressed “no concerns” about Mother during the visits. Ka.B. and S.B were both bonded to Mother.
In July, CFS drafted a reunification services plan for Mother which included grief counseling, domestic violence counseling, and parenting education. She participated in grief counseling and domestic violence counseling, but said she was not benefiting from them because she was depressed. In October, she was again referred to grief counseling through another program, and CFS recommended adding random drug testing and outpatient substance abuse services to her services plan. On September 29, she missed a screening appointment for her pregnancy.
On October 1, Jane K. Kilbourne interviewed S.B. at the Children’s Assessment Center. She described S.B. as a “bright and cheerful” child with appropriate eye contact and attention span. S.B. said he had two uncles, whom he later referred to as Mother’s boyfriends, who would come to Mother’s apartment, smoke cigarettes and “blunts” (marijuana cigarettes), watch television, and drink beer. The boyfriends once tried to put a “blunt” into Ke.B.’s mouth, but Ke.B. moved his head away. When S.B. would do something wrong at home, Mother would “whoop” him with a “hard, hard, hard belt” on his legs, feet, and stomach. One of her boyfriends had hit him on the back of his head with a belt, and the other had hit him on his forehead with a white metal hanger.
On October 17, social worker Keith Kollman (SW Kollman) gave his rationale for recommending and continuing reunification services for Mother and the boys’ father. He opined that, although Mother contributed to the death of Ke.B. by neglecting to follow through on his medical needs and by failing to provide a safe environment for him free of exposure to drugs, S.B. and Ka.B. did not have special needs, and both parents were “showing signs” they could overcome the obstacles they had “put themselves into” and benefit from services. On October 20, CFS filed amended petitions for S.B. and Ka.B.
In an October 2008 status review report, SW Kollman wrote: “It is [my] opinion that [Mother] did contribute to the death of her special needs child, [Ke.B.] based on [her] lack of follow through for [his] medical needs and lack of ensuring a safe environment by failing to minimize potential risk factors due to the exposure of illegal substances in and around the family environment. However, [S.B. and Ka.B.] do not require the same level of medical attention that [Ke.B.] required.... Both parents... are... showing signs they have the ability to overcome the obstacles they have put themselves into, by continuing to engage and benefit from the services offered to them and maintain the visits and relationship with the children.”
At a combined jurisdictional/dispositional hearing on January 9, 2009, the court found that S.B. and Ka.B. were at risk because Mother associated with known substance abusers and had a substance abuse problem that affected her ability to parent. (§ 300, subd. (b).) The court further found that Ke.B. died while in Mother’s care, which would not have ordinarily occurred except as a result of her unreasonable or neglectful acts or omissions, including her failure to adequately maintain medical care for Ke.B. (§ 300, subds. (f), (j).)
Regarding disposition, CFS continued to recommend reunification services for Mother. The children’s counsel contested the recommendation. The children’s counsel called Mother as a witness, but on the advice of her counsel she invoked her Fifth Amendment right to remain silent regarding the events of July 3, the day Ke.B. died, and whether she had received any discharge instructions from CHOC. The record in the boys’ appeal does not indicate whether Mother has been charged with a crime in connection with the death of Ke.B.
Mother answered some questions regarding medical care and treatments she had sought or provided for her children. Ke.B. was diagnosed with asthma at age one. She sought treatment for his asthma at that time, he had not had an asthma attack since, and she had an albuterol machine for him. Ka.B. also had asthma, which was worse than Ke.B.’s. Mother had a new albuterol machine for Ka.B. She denied allowing anyone to smoke cigarettes or marijuana around Ke.B. or Ka.B. S.B. had a heart murmur, his only medical condition.
Mother recalled that her original family maintenance plan required her to complete a 12-week parenting course and a 12-week domestic violence course. Since March 2008, she had attended four parenting and four domestic violence classes, but dropped out of both courses after Ke.B. died and had not re-enrolled in either since that time. She was currently enrolled in a substance abuse class and a grief counseling class, however. She had taken two classes in each area and had consistently been visiting the children. She admitting hitting S.B. with a belt but denied leaving marks. She denied ever hitting Ka.B.
At the close of the hearing, the court ordered that reunification services be offered to Mother and the boys’ father, and found it would be in the boys’ best interests to offer reunification services to Mother. The court acknowledged that Mother had “significant issues” to address before the boys could be returned to her care, and it remained to be seen whether she was sufficiently motivated to address those issues. Still, the court emphasized that the boys had been “reasonably well taken care of” and were clearly bonded to Mother. Accordingly, the court concluded Mother should be given the opportunity to show she could resolve the problems that resulted in their removal from her care.
The court admonished Mother to work “seriously” on her case plan because she had only two more months—until March 2009, when the initial six-month review period ran—to show she could provide a safe home for the boys. Mother agreed to participate in additional service plan elements, including substance abuse testing at least twice each month, substance abuse outpatient services, and anger management services.
C. The Present Proceedings Involving K.P.
Shortly after K.P. was born in March 2009, CFS filed a petition alleging she was at risk of serious harm because Mother and her alleged father, D.P., had substance abuse problems that affected their abilities to parent, D.P.’s whereabouts and willingness to care for K.P. were unknown, and Ke.B. died as a result of Mother’s “neglectful acts or omission[s].” (§ 300, subds. (b), (g), (j).) At the detention hearing on March 10, K.P. was ordered removed from the care of Mother and D.P., CFS was ordered to provide reunification services to both parents, and both parents were granted supervised visitation, twice weekly.
The detention report stated Mother had “a history of not following through with services” designed to ensure she could acquire the skills necessary to provide a “safe environment and lifestyle” for her children. Mother began attending domestic violence, parenting, and individual counseling around February 2009, pursuant to her case plan for the boys. Still, she had “not resolved concerns regarding her substance abuse” and had not begun to address her substance abuse issues through treatment.
Mother also had a continuing criminal history. In March 2009, there was an outstanding bench warrant for her arrest due to her failure to appear on theft charges and a traffic violation. She also had an April 2005 conviction for theft, and was booked for forgery in February 2006. She claimed the forgery involved a bounced check for which she had made restitution.
D.P. had an outstanding arrest warrant for failing to appear on October 25, 2008, for a possession of marijuana charge. Mother was continuing to associate with D.P., who was living “back and forth” between his parent’s home and Mother’s apartment. D.P. admitted smoking marijuana in Ke.B.’s room on July 3, 2008, the day Ke.B. died.
Mother and D.P. were ordered to drug test at the March 10 detention hearing. Mother signed in at a testing facility that day but left before being tested. As of April 1, CFS had not received confirmation that either Mother or D.P. had tested for drugs since March 10. Mother claimed she had used illegal drugs only twice since Ke.B. died in July 2008.
K.P. was placed in the same foster home with S.B. and Ka.B. S.B., then age seven, was described as “excited and happy” about having his sister in the same home. Ka.B. was 19 months old at the time. The boys were bonded and appeared to be forming a positive relationship with each other. Mother was consistently visiting all three children on Thursdays and Saturdays, and the visits were going well.
By April 22, Mother had completed six individual counseling sessions through Catholic Charities since February 23, and had two more sessions to complete. Mother’s counselor believed Mother was doing very well and appeared to be applying the skills she was learning from her parenting program in her visits with the children. Her conflict resolution and communications skills had also improved, and she had consistently been attending her parenting skills and domestic violence programs.
Mother enrolled in an inpatient substance abuse treatment program on March 24, but left after one week because she was concerned she would be unable to complete certain aspects of her case plan while enrolled in the program. She then enrolled in an outpatient program, and was terminated from that program on April 16 due to noncompliance. She had not contacted the outpatient facility since enrolling in the outpatient program. Despite Mother’s ongoing substance abuse problem, CFS recommended offering her reunification services.
At the jurisdictional/dispositional hearing on May 13, the juvenile court took judicial notice of court records in the boys’ proceedings, including the January 9, 2009, jurisdictional/dispositional orders concerning the boys. The court found the petition allegations true and declared K.P. a dependent of the court.
The court also took judicial notice of the findings and orders made at the March 4, 2009, six-month review hearing for the boys; however, these records are not part of the record on this appeal.
Regarding disposition, counsel for K.P. argued that offering Mother reunification services for K.P. would not serve the child’s best interests (§ 361.5, subd. (c)), and neither CFS nor Mother had met their burden of demonstrating, by clear and convincing evidence, that such services would serve the child’s best interests. Counsel emphasized that Mother had allowed Ke.B. to “wast[e] away” and his death was ruled a homicide. “When the going gets tough,” he said, “we cannot rely on this mother to take care of this child.” When the court asked counsel how he “differentiate[d]” between offering Mother services for the boys from offering her the same services for K.P., counsel replied that the court made a mistake in ordering the services for the boys.
In response, counsel for Mother emphasized that K.P., S.B., and Ka.B. did not have the medical problems Ke.B. had. In addition, Mother had been making progress on her case plan and benefiting from her services. Counsel pointed out that Mother had been incorporating her newly-acquired parenting skills into her visits with the children, had been doing very well in counseling, and had consistently been visiting the children. Counsel urged the court not to separate K.P. from her brothers and Mother, because the boys and Mother were bonded to each other, and Mother and S.B. were bonded to K.P. In reply, counsel for K.P. said there was no evidence that K.P., then only two months old, was bonded to Mother.
In finding that offering Mother reunification services for K.P. would serve the infant’s best interests, the court explained it would be “shortsighted to isolate” K.P. from the rest of her family. The court also emphasized that Mother had been participating, not “faltering,” in her case plan for the boys. Accordingly, the court ordered that Mother be offered reunification services for K.P. This appeal by K.P. followed.
III. DISCUSSION
K.P. contends insufficient evidence supports the juvenile court’s finding that her best interests would be served by granting Mother reunification services, with the goal of returning her to Mother’s care. We conclude that substantial evidence supports the best interest finding.
A. Applicable Legal Principles
1. The Statutory Scheme/Section 361.5, Subdivisions (b)(4) and (c)
Whenever a child is removed from the custody of a parent or guardian, subdivision (a) of section 361.5 directs that the court “shall” offer the parent or guardian reunification services, unless it finds by clear and convincing evidence that one or more exceptions or bypass provisions described in subdivision (b) apply. (In re Ethan N. (2004) 122 Cal.App.4th 55, 63-64 (Ethan N.); In re Angelique C. (2003) 113 Cal.App.4th 509, 516.) The general rule of subdivision (a) reflects a “strong preference for maintaining the family relationship if at all possible. [Citation.]” (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.) When, however, one or more of the exceptions or bypass provisions apply, “the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources. [Citation.]” (Id. at p. 478; see also Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744.)
All further references to subdivisions are to subdivisions of section 361.5 unless otherwise indicated.
In its opening paragraph, subdivision (b) provides that reunification services “need not” be provided to a parent or guardian when the court finds that “any” of the exceptions or situations described in subdivision (b)(1) through (15) apply. (§ 361.5, subd. (b).) But in most of these situations, the “need not” proviso is effectively overridden by a statutory presumption against offering the parent reunification services. (Id., subd. (c).) Specifically, when any of the situations described in subdivision (b)(3), (4), (6), (7), (8), (9), (10), (11), (12), (13), (14), or (15) apply, subdivision (c) applies and provides that the court “shall not” offer the parent or guardian reunification services, “unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.” (§ 361.5, subd. (c).)
The juvenile court here found that Mother was a parent described in subdivision (b)(4). This exception applies when the parent or guardian seeking reunification services has “caused the death of another child through abuse or neglect.” (§ 361.5, subd. (b)(4).) The court specifically found that the death of Ke.B. would not have “ordinarily occur[ed]” but for Mother’s “neglectful acts or omission[s],” including her failure to “maintain adequate medical care” for the child.
When, as here, the court finds that a parent or guardian is described in subdivision (b)(4), the parent or guardian has the burden of affirmatively demonstrating that reunification with the child—and therefore offering reunification services to the parent or guardian—would be in the child’s best interest. (Ethan N., supra, 122 Cal.App.4th at p. 66; § 361.5, subd (c).) The court has broad discretion in determining whether the parent or guardian has met this burden and therefore whether to offer the parent or guardian reunification services under subdivision (c). (In re Angelique C., supra, 113 Cal.App.4th at p. 523.) An appellate court may not disturb the court’s best interest determination absent a clear showing of an abuse of discretion. (Id. at pp. 523-524.)
2. Cases Applying the Best Interest Exception
(a) Ethan N. and the Factors Relevant to the Best Interest Finding
The court in Ethan N. listed four factors it said juvenile courts should consider in determining whether reunification would serve a child’s best interest, particularly when the court has found that the parent seeking reunification has caused the death of another child through abuse or neglect. (§ 361.5, subds. (b)(4), (c).) These are: (1) the “parent’s current efforts and fitness as well as the parent’s history,” (2) the gravity of the problem that led to the dependency, (3) the strength of the relative bonds between the child and the parent and the child and his or her caretakers, and (4) the child’s need for stability and continuity. (Ethan N., supra, 122 Cal.App.4th at pp. 66-67.)
It should be noted, however, that the factors listed in Ethan N. are not exhaustive. It has long been recognized that the concept of a child’s best interest “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.” (Adoption of Michelle T. (1975) 44 Cal.App.3d 699, 704.) Thus, additional factors may bear upon the court’s best interest finding, depending upon the circumstances of the case.
As will appear, the facts of Ethan N. were egregious, and when analyzed within the framework of the factors listed above, militated against a finding that the child’s best interest would be served by granting the parent reunification services as a matter of law. One-week-old Ethan was removed from his mother’s care after the juvenile court found the mother’s “‘active participation or neglect’” had caused the death of her earlier-born infant, Charles, when Charles was only 39 days old. (Ethan N., supra, 122 Cal.App.4th at pp. 59, 62.) The mother’s husband had repeatedly and severely abused Charles and was sentenced to life without parole for Charles’s murder. In addition, the mother had previously lost parental rights to three other children, and had an extensive history of methamphetamine use. She failed to protect her three older children and Charles from abuse by her husband despite having received extensive services for the three older children. Following the death of Charles, the mother was convicted of possessing methamphetamine for sale and served time in jail. Thereafter, she completed a substance abuse program and was participating in outpatient services and Narcotics Anonymous meetings. (Id. at pp. 59-62.)
At a contested dispositional hearing, counsel for Ethan and the department urged the juvenile court not to offer the mother reunification services. Nevertheless, the court found reunification with the mother was in the best interest of Ethan and offered her services, in view of her “‘significant progress towards alleviating or mitigating the causes’” of Ethan’s and the older children’s placement in out-of-home care. (Ethan N. supra, 122 Cal.App.4th at pp. 62-63, 65.)
The Ethan N. court held that the juvenile court’s best interest finding was not supported by substantial evidence and also constituted an abuse of discretion, because the court did not apply the “correct standards” in determining whether reunification with the mother was in the best interest of Ethan. And, as applied, none of these standards supported the court’s best interest finding. (Ethan N., supra, 122 Cal.App.4th at pp. 64-68.) The court first emphasized that the mother’s current efforts to alleviate the problems that led to the dependency of Ethan and her older children could not alone support a best interest finding for purposes of subdivisions (b)(4) and (c). This is because the “absence of a negative does not, in this context at least, make a positive. The parent responsible for the previous death of another child must affirmatively show that reunification would be in the best interest of a surviving child.” (Ethan N., supra, at p. 66.)
In considering the gravity of the problem that led to the children’s dependency, the court noted: “It 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.) And, while assuming, without deciding, that the death of another child by abuse or neglect “should not be weighed twice—first in connection with the... subdivision (b)(4) finding and again in determining best interest,” the court emphasized that the death of Charles was “combined with a long history of drug abuse, family violence, and the abuse and neglect of other children even after extensive reunification services had been provided” to the mother. (Id. at pp. 66-67, fn. omitted.)
Regarding the strength of the relative bonds between Ethan and the mother and Ethan and his caretakers, the court noted that undisputed evidence showed Ethan was bonded to his caretakers, not to the mother. (Cf. In re William B. (2008) 163 Cal.App.4th 1220, 1229 [child’s bond with parent cannot be the sole basis for a best interest finding; it must be shown that reunification with the parent is possible].)
Finally, regarding Ethan’s need for stability and continuity, which the court said was “[o]f paramount concern” in determining his best interest under subdivision (c), the court noted Ethan had been removed from the mother’s care within days of his birth and had since lived with a relative caretaker who was “ready and willing to provide long-term care” for him. (Ethan N., supra, 122 Cal.App.4th at p. 67.) The mother, on the other hand, was struggling with the “‘lifetime process’” of overcoming her long-standing and severe substance abuse problem. (Ibid.) In these circumstances, the court emphasized that children such as Ethan “‘“should not be required to wait until their parents grow up.”’” (Ibid., citing Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73.)
Although the juvenile court in Ethan N. failed to consider any of the four factors the appellate court said it should have considered, the appellate court did not remand the matter to the juvenile court for further consideration of its best interest finding in light of these factors. Instead, it directed the juvenile court to enter an order terminating the mother’s services. (Ethan N., supra, 122 Cal.App.4th at pp. 66-69.) The court emphasized that a parent seeking reunification with a child after the parent has caused the death of another child by abuse or neglect faces an “enormous hurdle” in demonstrating that reunification would serve the child’s best interest, and cases in which the parent seeking reunification will meet his or her burden of affirmatively showing that reunification will serve the child’s best interest “will be rare.” (Id. at pp. 68-69, citing In re Alexis M. (1997) 54 Cal.App.4th 848, 853, fn. 5 (Alexis M.).)
(b) Alexis M. and Mardardo F., Compared to Ethan N.
Mardardo F. v. Superior Court (2008) 164 Cal.App.4th 481 (Mardardo F.).
Like Ethan N., Alexis M., involved a parent whom the court considered ineligible for reunification services as a matter of law. There, a father was convicted of felony child abuse in connection with the death of his four-month-old son Alexander and was sentenced to six years in prison. The father sought reunification services for his infant daughter Alexis, who was born eight months after Alexander died. There was evidence of repeated trauma to Alexander’s body, and the father admitted dropping the child and shaking him to keep him from crying. (Alexis M., supra, 54 Cal.App.4th at pp. 850-852 & fn. 2.) The father was not offered reunification services for Alexis, and the court said it would have been an abuse of discretion to offer him the services. (Id. at pp. 852-853.) The court reasoned that the father’s “very serious acts of abuse” of Alexander were “simply too shocking to ignore” in determining whether he should have been offered reunification services for Alexis (id. at pp. 850-851) and “[t]he enormity of a death arising out of felony child abuse swallows up almost all, if not all, competing concerns” (id. at p. 853, fn. 5).
The more recent case of Mardardo F., supra, 164 Cal.App.4th 481also involved a parent whom the court deemed ineligible for reunification services as a matter of law. There, a 28-year-old father sought reunification services for his three-month-old son, but had brutally raped and murdered a 13-year-old girl when he was 15 years old. He was committed to the California Youth Authority (now the Department of Corrections and Rehabilitation, Division of Juvenile Justice) (CYA) for a term of 25 years to life for the murder, and was dishonorably discharged from CYA at age 25. (Id. at p. 484.) At that time, he was still considered a threat to society. He had failed to complete a sex offender program, had been diagnosed with antisocial personality disorder, had little or no insight into his offense, and had engaged in violent and sexually inappropriate behavior throughout the course of his CYA commitment. (Id. at p. 492.) In view of the father’s history and his failure to rehabilitate, the court held he “came nowhere close” to meeting his burden of showing that reunification services for him would serve the best interests of his infant child. (Id. at pp. 484, 492.) The father’s rape and murder of another child, though not his own child, coupled with his failure to rehabilitate himself, effectively ruled out any possibility that granting the father services would serve his infant child’s best interests.
Notably, Mardardo F. and Alexis M. involved fathers who had either brutally murdered or otherwise caused the death of another child through felony abuse or neglect. This fact alone rendered the fathers ineligible for reunification services, because no reasonable court could have found their infant children’s best interests would have been served by offering the fathers services. As the court in Alexis M. pointed out: “It is only common sense that the times when a parent commits felony child abuse, and an infant dies, and the parent should still be offered reunification services regarding the surviving children are going to be extremely rare. The enormity of a death arising out of felony child abuse swallows up almost all, if not all, competing concerns. And, while the Legislature’s wording may allow for some theoretical case where a parent can be [guilty of causing the death of a child through abuse] and still be accorded reunification services, this case isn’t it.” (Alexis M., supra, 54 Cal.App.4th at p. 853, fn. 5.)
Ethan N. was not such a case either. But compared to Alexis M. and Mardardo F., the facts of Ethan N. were much more nuanced and not so clear cut. As discussed, the mother in Ethan N. caused the death of her infant son Charles through her “‘active participation or neglect,’” essentially because she allowed Charles’s father to brutally abuse and eventually murder the child. (Ethan N., supra, 122 Cal.App.4th at p. 62.) Still, the mother’s role in causing Charles’s death was not the only reason the court concluded she was unable to meet her burden of showing that granting her reunification services for her newborn son Ethan would have served Ethan’s best interests. Other factors, discussed above, also supported the court’s conclusion.
As the following analysis demonstrates, the present case, like Ethan N., involves complex facts and a difficult best interest determination.
B. Analysis
In arguing that insufficient evidence supports the juvenile court’s finding that her best interests would be served by offering Mother services, K.P. points to several factors she claims weigh against the best interests finding. These include: (1) the court’s prior finding, in January 2009, that Ke.B. died as a result of Mother’s neglectful acts or omissions, (2) Mother’s failure to provide a stable home for K.P.’s three older half siblings even while she was receiving family maintenance services for them, as evidenced by the “culture centering on partying” that prevailed in her home, including her allowing her “boyfriends” to smoke marijuana in the boys’ presence, and (3) Mother’s physical abuse of S.B., including hitting him with a belt and allowing one of her boyfriends to hit him with a metal hanger.
Although we agree that the evidence cited by K.P., at least generally, disfavored the court’s best interest finding, our task is not to weigh the evidence presented to the court. Instead, it is to determine whether substantial evidence supports the court’s best interest finding. In other words, it is to determine whether the court abused its discretion in determining that K.P.’s best interests would be served by offering Mother reunification services for K.P. (In re Angelique C., supra, 113 Cal.App.4th at pp. 523-524.) As indicated, a juvenile court has broad discretion in making a best interest finding pursuant to subdivision (c). (In re Angelique C., supra, at p. 523.)
We examine K.P.’s arguments in light of the factors the court in Ethan N. concluded juvenile courts should consider in making a subdivision (c) best interest finding. (Ethan N., supra, 122 Cal.App.4th at pp. 66-67.) In light of these factors and the entire record, we conclude that substantial evidence supports the court’s best interest finding, and the court did not abuse its discretion in finding that granting Mother reunification services for K.P. would serve the child’s best interest.
1. The Gravity of the Problems Leading to K.P.’s Dependency
K.P. argues that Mother’s “shockingly neglectful” care of Ke.B., which caused his preventable death, “should not be ignored and weighs strongly in favor of a finding that providing [M]other with reunification services did not serve [K.P.’s] best interests.” K.P. further argues that the facts of the present case are similar to those of Ethan N., particularly in view of Mother’s history of drug use and domestic violence and the limited bond Mother shared with K.P.
We agree that Mother’s neglectful acts or omissions in causing Ke.B.’s death must not be “ignored” and, at least generally, weighed against granting her reunification services for K.P. (Cf. Ethan N., supra, 122 Cal.App.4th at p. 66 [questioning whether the factor of another child’s death should be weighed twice—first in connection with the subdivision (b)(4) finding and again in determining whether reunification services for the parent would serve the child’s best interests under subdivision (c)].) Indeed, Mother neglected to obtain adequate medical care for Ke.B., despite having been warned of the fragility of his condition and exactly what steps she had to take in order to properly care for him. She also had the benefit of family maintenance services at the time of his death.
In addition, the problems that led to K.P.’s dependency and removal, like the problems that led to the dependencies of S.B. and Ka.B. and their ultimate removal, extended beyond Mother’s failure to provide adequate medical care for Ke.B. Mother had long-standing domestic violence problems with the boys’ father, which led to their being declared dependents in February 2008. She also failed to provide a safe home environment for the boys, as evidenced by her allowing her “boyfriends” to place a marijuana cigarette in Ke.B.’s mouth and smoke marijuana in front of the boys, which contributed to the removal of S.B. and Ka.B. from her care following Ke.B’s death in July 2008. And she had a substance abuse problem—marijuana use—which she apparently had well before Ke.B.’s death.
The problems that led to K.P.’s and the boys’ dependencies were serious and, if unaddressed, threatened the ability of K.P and the boys to develop into stable, well-adjusted adults. (Ethan N., supra, 122 Cal.App.4th at p. 66 [purpose of serving the best interest of a child is to maximize the child’s opportunity to develop into a stable, well-adjusted adult].) Still, these problems did not appear to be intractable or incapable of being ameliorated within the reunification period. SW Kollman expressed confidence that Mother could overcome the problems that led to the boys’ dependencies. In this respect, Mother is, for the most part, unlike the mother in Ethan N., who had a long history of methamphetamine abuse, family violence, and a history of abusing or neglecting her older children, despite having had years of “extensive” reunification services for her older children. (Id. at pp. 66-67.)
2. Mother’s Current Efforts, Fitness, and History
As CFS pointed out in its March 10 detention report for K.P., Mother had a history of failing to participate in services that had been offered to her since the boys were declared dependents in February 2008. To be sure, Mother’s participation in her various services plans for the boys was minimal both before and after Ke.B. died in her care in July 2008. Between July 2008 and January 2009, Mother attended only two grief counseling classes and two substance abuse classes, but participated in no other services and failed several random drug tests. Although Mother claimed her lack of participation in her services plans and her marijuana smoking was due to her depression over the death of Ke.B., it is evident that her minimal participation in her services plans began well before Ke.B. died and persisted through the January 2009 further jurisdictional/dispositional hearing for S.B. and Ka.B., even though she did not have custody of the two boys for six months before that hearing. It is also evident that Mother’s problem with marijuana began well before the death of Ke.B., in view of her allowing her boyfriends to smoke in the presence of the boys.
More recently, between March 2009, when K.P. was removed from Mother’s care, and May 2009, when the court granted Mother reunification services for K.P., Mother’s participation in her services plans for K.P. was mixed. Mother was described as doing “very well” in individual counseling and was learning to incorporate her newly-acquired parenting skills into her visits with all three children. She had also been consistently visiting K.P. and the boys in the same foster care facility twice each week. But she had not submitted to any random drug tests, even on March 10 when the court ordered her to do so. That day, she went to the testing facility but left before being tested. As of April 22, CFS had no record that Mother had taken a drug test since March 10. Mother also left an inpatient drug treatment program after one week and was terminated from an outpatient drug treatment program on April 16 due to her failure to return to the program after signing up for it on March 24. Mother was also continuing to associate with D.P. who, like Mother, had a continuing problem with marijuana use.
Overall, as of May 2009 Mother was making progress in her services plans for K.P., but had much to accomplish concerning her ongoing substance abuse problem with marijuana. Her failure to submit to random drug tests or to follow through with her outpatient drug treatment program through the time of the May 13, 2009, jurisdictional/dispositional hearing for K.P., raised further questions concerning whether she was sufficiently motivated or committed to alleviating the problems that led to her children’s dependencies.
3. The Strength of the Relative Bonds Between the Children and Mother and the Children and Their Caretakers
As indicated, K.P. was placed in the same foster care facility with S.B. and Ka.B. in March 2009, shortly after her birth and removal from Mother’s care. S.B., then age seven, was “excited and happy” to have K.P. in the home. Ka.B., then only 19 months old, was apparently too young to understand that K.P. was his sister. Still, S.B. was bonded to Mother and both his siblings, and Ka.B. was bonded to Mother. There was no indication that any of the children were bonded to their caretakers. Mother was bonded and dedicated to all her children, as indicated by her consistent visits with them.
4. K.P.’s Need for Stability and Continuity
As noted, a child’s need for stability and continuity is of “paramount concern” in determining whether reunification with a subdivision (b)(4) parent would serve the child’s best interest under subdivision (c). (Ethan N., supra, 122 Cal.App.4th at p. 67.) The court in Ethan N. was concerned with an infant child, Ethan, who was detained within days of his birth and who had since remained with the same relative caretaker who was “ready and willing to provide long-term care” for him. (Ibid.) The court was also concerned with a mother who had a long-standing methamphetamine problem and who was barely on the road to a “‘lifetime process’” of recovery. (Ibid.)
Here, as in Ethan N., K.P. was an infant child detained within days of her birth and had not developed a meaningful parental bond with Mother. But unlike the infant child in Ethan N., K.P. did not have a relative caretaker ready and willing to provide long-term care for her. She was also placed in the same foster facility with her half siblings, S.B. and Ka.B. S.B., the oldest child, knew K.P. as his sister and was becoming bonded to her.
5. Conclusion
In granting Mother reunification services for K.P., the juvenile court observed that K.P. and the boys were part of the same sibling group and that Mother was already receiving services for the boys. Given this circumstance, coupled with the prior finding by the court in the boys’ proceedings that the boys’ best interests would be served by offering Mother services for them, the court here felt “hard pressed” to make a contrary finding for K.P. The court also points out that Mother was making progress in her services plans for all the children.
In view of all of the evidence presented at the May 13, 2009, hearings, we cannot say the court abused its discretion in finding that K.P.’s best interests would be served by offering Mother services for her, or that insufficient evidence supports the best interest finding. First, the court effectively considered each of the factors enumerated in Ethan N., including the gravity of the problems that led to K.P.’s (and the boys’) dependency, Mother’s current efforts to ameliorate these problems, her history and fitness, the children’s bonds with her, their caretakers, and each other, and the children’s need for stability and continuity. (Ethan N., supra, 122 Cal.App.4th at pp. 66-67.) And, on balance, each of these factors supported the best interest finding for K.P.
First, the gravity of the problems that led to K.P.’s and her brothers’ dependencies, though serious and ongoing, were not as intractable as those that led to the children’s dependencies in Ethan N., Alexis M., and Mardardo F. And, although Mother had yet to demonstrate any progress in addressing her marijuana use problem, she had been making progress in other aspects of her services plans for the children.
Moreover, and as the juvenile court indicated, K.P. and her brothers were part of the same sibling group, and her need for stability and continuity coincided with theirs. None of the children had relative caretakers available or interested in caring for them, and there was no evidence any of them were bonded to their caretakers. Although K.P. was too young to have formed a parental bond with Mother or a sibling bond with S.B. or Ka.B., she was part of their family, and her best interests lie with giving Mother a chance to reunify with her and her brothers. In addition, the court had reason to conclude that Mother would reunify with K.P. and her brothers, because she was making significant progress in key aspects of her services plans. (Cf. In re William B., supra, 163 Cal.App.4th at pp. 1228-1229 [before reunification services are offered to a parent to whom services “need not” be provided, there must be a “reasonable basis to conclude” that reunification is possible].)
We are mindful that a parent’s current efforts to alleviate the problems that led to the dependency of a child cannot alone support a best interest finding under subdivision (c). (Ethan N., supra, 122 Cal.App.4th at p. 66.) Nor may a child’s bond with a parent be the sole basis for the finding. (In re William B., supra, 163 Cal.App.4th at p. 1229.) Here, however, the court did not rely solely upon either of these factors in making its best interest finding for K.P.
IV. DISPOSITION
The May 13, 2009, dispositional order granting Mother reunification services for K.P. is affirmed.
We concur: Ramirez, P.J., McKinster, J.
Mother was born in 1980 and lived with her mother until 1986, when she and her siblings went to live with an aunt. Her father used alcohol and drugs, and often came to her mother’s home and engaged in domestic violence. Mother began using drugs and alcohol during high school, but claimed she had not used any illegal drugs since high school until Ke.B. died in July 2008.