From Casetext: Smarter Legal Research

In re M.N.

California Court of Appeals, Third District, San Joaquin
Jul 21, 2008
No. C057777 (Cal. Ct. App. Jul. 21, 2008)

Opinion


In re M.N., a Person Coming Under the Juvenile Court Law. SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.H., Defendant and Appellant. C057777 California Court of Appeal, Third District, San Joaquin July 21, 2008

NOT TO BE PUBLISHED

Super. Ct. No. J04568

CANTIL-SAKAUYE, J.

Appellant M.H., mother of the minor M.N., appeals from an October 29, 2007 dispositional order adjudging the minor a dependent of the juvenile court and denying appellant reunification services. (Welf. & Inst. Code, §§ 360, subd. (d), 395.) She contends the portion of the order denying her reunification services is not supported by sufficient evidence because the San Joaquin County Human Services Agency (HSA) failed to advise the juvenile court whether reunification was likely to be successful. We shall affirm.

Hereafter, undesignated statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

The two-year-old minor was placed into protective custody on March 28, 2007. According to a section 300 petition filed shortly thereafter by HSA, on March 28, 2007, the minor had two black and extremely swollen eyes, an open wound above her top lip, scars on her left cheek and near her left ear, a “bump/wound” on her head, open sores on her buttocks, and numerous old and fresh scars on her knee, upper legs, and back. Appellant failed to seek medical attention for the minor’s injuries even though they were visible. She also continued to leave the minor with the babysitter even though “she ha[d] noticed new injuries on the minor when she picked her up from the [babysitter]” in the past. Based on these allegations, HSA asked the juvenile court to exercise jurisdiction over the minor pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (e) (serious physical abuse), and (i) (cruelty).

The petition further alleged the minor was left without provision for support in that her presumed father was incarcerated and failed to provide ongoing support for her. (§ 300, subd. (g).) The father is not a party to this appeal.

In late February 2007, appellant began leaving the minor with the babysitter for two to three days at a time. On March 24, 2007, appellant dropped the minor off at the babysitter’s home, and the minor remained in the babysitter’s care until she was placed into protective custody on March 28, 2007.

Once in protective custody, the minor was taken directly to the hospital where she was diagnosed with a scalp abscess, multiple burns of different ages, multiple bruises, dental decay, and severe anemia. The scalp abscess was infected, and the minor cried when any part of her head was touched. The minor was given antibiotics intravenously and received a blood transfusion. She was discharged on April 3, 2007; however, the next day, lab reports indicated she had a blood infection, and she was readmitted to the hospital for treatment. She remained in the hospital until April 16, 2007. While there, she told a nurse she was mad because “[m]y mom hit me.”

Appellant said the minor was always itching and constantly scratching her back. She denied ever seeing the numerous marks on the minor’s body, other than the scratches. Appellant believed the minor’s injuries were caused by the babysitter. Appellant said she would never harm the minor.

According to the babysitter, when appellant dropped the minor off on March 24, 2007, the minor had a swollen left leg, sores on her hip and buttocks, a sore on her knee, a scab below her lip, and old scratch marks and numerous black spots on her back. On March 26, 2007, the minor hit her head on a china cabinet in the babysitter’s home. At first, there was a “little bump” on the minor’s head. When the swelling persisted, the babysitter telephoned appellant and the minor’s aunt. Neither appellant nor the aunt returned her calls. The babysitter continued telephoning appellant when the minor’s eyes began to swell. On March 27, 2007, appellant sent the babysitter the following text message: “very sick had migraines for three days, sorry ain’t called home, how my kid doing, tell her I love her, do u got pain pills? Fuck a nigger CMD.”

Appellant’s sister A.G. said appellant “was a good mother at first” but then began using methamphetamine. A.G. cared for the minor for a week in February 2007. At that time, the minor had a scar on the back of her neck, a black eye, a burn on her leg, a little burn on her left arm, and sores on her buttocks. Those injuries were present before the babysitter began watching the minor.

Appellant failed to attend the jurisdictional hearing on July 2, 2007, and the juvenile court sustained the petition and continued the matter for a dispositional hearing.

The social worker’s report prepared for the dispositional hearing indicated appellant was charged with felony child abuse and child endangerment, and on July 30, 2007, pled guilty to felony child endangerment. She was placed on five years’ formal probation on the condition, among others, she serve one year in county jail. The trial court also issued a protective order “stating that [appellant] must stay away from the minor until another [c]ourt lifts the order.” Appellant was incarcerated at the San Joaquin County Jail.

Appellant had a long history of substance abuse for which she had yet to seek treatment. The social worker referred appellant to counseling, parenting classes, and drug treatment assessment.

Appellant wanted the minor returned to her custody and said she was willing to cooperate with HSA. She visited the minor for one hour per week. The minor often did not smile at appellant when appellant arrived for a visit, refused to hug appellant, and sometimes appeared to be afraid to be left alone with appellant. Appellant arrived 50 minutes late and “high” to one visit, and when she bent down to hug the minor, a glass pipe fell out of her shirt pocket.

The minor was in good health and doing well in foster care. The foster mother reported the minor asked her, “[A]re you going to burn me?”

Appellant was present and in custody at the contested dispositional hearing on October 29, 2007. The social worker testified the minor was “very apprehensive” toward appellant when appellant visited her in the hospital. During subsequent visits, the minor “stare[d] at [appellant] with kind of a nervous look on her face” and often asked for the social worker or foster mother. The minor was not affectionate toward appellant; she was reluctant to hug or kiss appellant and had to be coaxed to do so. The social worker referred appellant to substance abuse treatment and parenting classes; however, appellant never entered drug treatment or completed parenting classes.

The social worker recommended appellant be denied reunification services based on the physical abuse suffered by the minor, appellant’s failure to seek medical treatment for the minor’s injuries, her conviction for child endangerment, the stay-away order, her incarceration, her “very minimal participation on the case plan,” and the minor’s lack of attachment to her. The social worker did not believe it would be detrimental to the minor to deny appellant services because she “never saw anything but what appeared to be apprehension and fear” when the minor saw appellant.

Appellant’s sister R.H. testified she lived with appellant and the minor from the time the minor was born until approximately December 2006. During that time, R.H., not appellant, cared for the minor. At the end of November 2006, R.H. learned appellant was using drugs and kicked her out of the house. The minor, however, stayed with R.H. R.H. moved on February 2, 2007, and the minor went to live with appellant. R.H. continued to see the minor. During a visit in March 2007, before the minor was placed into protective custody, she noticed a burn on the minor’s back and neck. Appellant and the minor told her the minor was burned at the babysitter’s house. R.H. believed appellant “had something to do with” the other marks on the minor’s body based on the way the minor acted toward appellant “the [previous] year” and when appellant visited the minor in the hospital. The minor seemed afraid of appellant and wanted to be with R.H.

Appellant testified she used drugs from December 2006 until May 27, 2007, and admitted showing up to a visit high. She never noticed any burns on the minor’s body; she believed the marks were eczema and was told the scars on the minor’s back were the result of two separate falls the minor sustained when she was with R.H. Appellant attempted to be assessed for drug treatment but was refused because she had outstanding warrants. She also began parenting classes. Before she could take care of the warrants or complete the parenting classes, however, she was incarcerated. She completed an anger management class and was attending substance abuse classes every day at the jail. She was scheduled to begin a parenting class in January 2008 and had been accepted into a live-in program for families upon being released from jail, where she would receive instruction in anger management, parenting, and life skills. She disagreed with the recommendation not to provide her with reunification services. She loved the minor and wanted an opportunity to reunify with her. When asked “how did all these things happen” if she loved the minor so much, she explained she was “being careless,” had a substance abuse problem, and was overwhelmed with being a young parent, attending classes, and learning her mother had cancer. When asked what she would do different if given the opportunity, she said she “would watch over [the minor] every minute of the day and never allow anyone to hurt her again.”

The juvenile court adjudged the minor a dependent of the juvenile court and denied appellant reunification services pursuant to section 361.5, subdivision (b)(5). The court found by clear and convincing evidence the minor suffered severe abuse by appellant, and by the babysitter, a person appellant knew, and whom appellant knew or reasonably should have known was abusing the minor. The court also noted there was no evidence “that gave [it] any indication that there was something [appellant] would be doing . . . that would allow her to make some changes to reunify and this baby can’t sit around and wait until [appellant] gets her act together.” The court further concluded the denial of services would not be detrimental to the minor because appellant “passed on her parental responsibility early on before CPS [Child Protective Services] was involved,” and as a result, the minor was not closely bonded to her.

The court continued the contested dispositional hearing as to the minor’s father to December 7, 2007. At that hearing, the court denied the father reunification services and set a section 366.26 hearing.

DISCUSSION

Appellant contends the portion of the October 29, 2007 order denying her reunification services is not supported by sufficient evidence because HSA “failed in its investigatory obligation by not addressing whether reunification would succeed . . . .” As we shall explain, appellant forfeited the issue by failing to raise it in the juvenile court and, even assuming the issue was preserved for review, it fails on the merits.

The juvenile court denied services pursuant to section 361.5, subdivision (b)(5). Under that subdivision, the juvenile court is not required to provide reunification services to a parent if it finds, by clear and convincing evidence, the child was adjudicated a dependent under section 300, subdivision (e) because of the parent’s conduct. A child may be adjudged a dependent under section 300, subdivision (e) when he or she “is under the age of five years and has suffered severe physical abuse by a parent, or by any person known by the parent, if the parent knew or reasonably should have known that the person was physically abusing the child.”

Pursuant to section 361.5, subdivision (c), when a juvenile court makes a finding pursuant to section 361.5, subdivision (b)(5), the court cannot order reunification services unless it finds, based on competent testimony, that (1) those services are likely to prevent the reabuse or continued neglect of the child, or (2) the failure to try reunification will be detrimental to the child because the child is closely and positively attached to the parent. To assist the court in making this determination, the social worker is required to “investigate the circumstances leading to the removal of the child and advise the court whether there are circumstances that indicate that reunification is likely to be successful or unsuccessful and whether failure to order reunification is likely to be detrimental to the child.” (§ 361.5, subd. (c).) Factors indicating that reunification services are unlikely to be successful include (1) the parent’s failure to respond to previous services, (2) the fact that the child was abused while the parent was under the influence of drugs or alcohol, (3) a past history of violent behavior, and (4) testimony by a competent professional that services are unlikely to change the parent’s behavior. (§ 361.5, subd. (c) .)

Here, the juvenile court adjudged the minor a dependent child under section 300, subdivision (e). In doing so, it found by clear and convincing evidence the minor suffered severe physical abuse by appellant, as well as the babysitter, a person known by appellant, and whom appellant knew or reasonably should have known was physically abusing the minor. Appellant does not challenge this finding, which constitutes a proper basis for the court to refuse to extend reunification services to appellant pursuant to section 361.5, subdivision (b)(5). (§ 361.5, subds. (b), (c); see In re Rebekah R. (1994) 27 Cal.App.4th 1638, 1652; see also Tyrone W. v. Superior Court (2007) 151 Cal.App.4th 839, 849.) We also note appellant is not claiming the minor had a close and positive attachment to appellant such that it would be detrimental to the minor to deny appellant services. (§ 361.5, subd. (c).) Nor could she make this argument on these facts. Rather, appellant’s sole contention on appeal is that the portion of the October 29, 2007 order denying her reunification services is not supported by substantial evidence because HSA “failed in its investigatory obligation by not addressing whether reunification would succeed . . . .”

The People first respond that the October 29, 2007 order is not “a final order of disposition,” and thus, not appealable because the juvenile court continued the dispositional hearing as to the minor’s father. The People are mistaken. In dependency proceedings, the right to appeal accrues when the court orders a disposition. (In re Rebekah R., supra, 27 Cal.App.4th at p. 1646; § 395.) As the People acknowledge, “the court issued all of the requisite findings regarding disposition as to [appellant]” at the October 29, 2007 hearing, including denying her services. Thus, the October 29, 2007 order is an appealable order. Moreover, contrary to the People’s assertion, appellant was not required to proceed by writ because the juvenile court did not set a section 366.26 hearing at the October 29, 2007 hearing. (In re Rebekah R., supra, 27 Cal.App.4th at p. 1646; § 366.26, subd. (l).)

The People next claim appellant forfeited her claim by failing to challenge in the juvenile court the adequacy of the dispositional report below. We agree. Although the dispositional report did not directly address whether appellant was likely to succeed with reunification if the juvenile court ordered services for her, appellant made no objection that the report was inadequate. Thus, she forfeited any claim that HSA’s failure to comply with section 361.5, subdivision (c), in itself, supports or requires our reversal of the juvenile court’s denial of services under section 361.5, subdivision (b)(5). (In re Urayna L. (1999) 75 Cal.App.4th 883, 886.) “[A]ny other rule would permit a party to trifle with the courts by standing silently by, thus permitting the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable. [Citation.]” (Ibid.)

Notwithstanding the above, we will consider the issue, if only to demonstrate that trial counsel was not ineffective for failing to argue the issue. Before we begin our analysis, however, we pause to note that while HSA had a statutory duty to investigate and advise the juvenile court about the prognosis for a successful reunification, it was not required to prove that services would be unsuccessful. (In re Raymond C. (1997) 55 Cal.App.4th 159, 164.) As we shall explain, HSA satisfied its duty.

The social worker’s report prepared for the dispositional hearing detailed the circumstances leading to the minor’s removal, including the minor’s injuries, appellant’s failure to seek medical treatment for those injuries, and the fact appellant continued to leave the minor with the babysitter even though she believed the minor had been injured while in the babysitter’s care. In recommending appellant be denied services, the social worker cited those circumstances, as well as appellant’s July 2007 conviction for felony child endangerment, appellant’s one-year jail sentence, the protective order prohibiting appellant from having any contact with the minor, and appellant’s “very minimal participation on the case plan.” The social worker also addressed the applicable statutory factors indicating reunification services are unlikely to be successful, namely appellant’s “very minimal participation on her case plan” and substance abuse during the relevant time period. Although the social worker did not expressly advise the court that services would be unsuccessful, such an advisement was implicit in her report and testimony. The court relied on both, in addition to appellant’s own testimony and that of her sister, in concluding: (1) there were no services that would allow appellant to reunify with the minor, and (2) the denial of such services would not be detrimental to the minor. On this record, we conclude HSA satisfied its investigatory and advisory obligations under section 361.5, subdivision (c).

Finally, contrary to appellant’s assertion, the record here does not suffer from the same infirmities that existed in In re Rebekah R., supra, 27 Cal.App.4th at page 1638. In that case, HSA “neither explored nor advised the court whether reunification . . . was or was not likely to be successful.” (Id. at p. 1653.) As a result, the court was left with an “evidentiary vacuum.” (Id. at p. 1656.) Here, however, there was ample evidence on that topic in the record and, as previously discussed, HSA satisfied its investigatory and advisory duties in this regard.

DISPOSITION

The judgment (October 29, 2007 order denying appellant reunification services) is affirmed.

We concur: SCOTLAND, P.J., RAYE, J.


Summaries of

In re M.N.

California Court of Appeals, Third District, San Joaquin
Jul 21, 2008
No. C057777 (Cal. Ct. App. Jul. 21, 2008)
Case details for

In re M.N.

Case Details

Full title:In re M.N., a Person Coming Under the Juvenile Court Law. SAN JOAQUIN…

Court:California Court of Appeals, Third District, San Joaquin

Date published: Jul 21, 2008

Citations

No. C057777 (Cal. Ct. App. Jul. 21, 2008)