Opinion
D051957
4-16-2008
In re RYDER M., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. BRANDON M., Defendant and Appellant.
NOT TO BE PUBLISHED
Brandon M., the father of Ryder M., appeals the juvenile courts dispositional order denying him reunification services because he caused the death of Ryders twin brother. (Welf. & Inst. Code, § 361.5, subd. (b)(4).) Notwithstanding the siblings death, Brandon contends that he should have received services because that would have been in Ryders best interest. (§ 361.5, subd. (c).)
Statutory references are to the Welfare and Institutions Code.
FACTS
Brandon and Cassandra H. are the parents of Ryder and Austin, who were born in December 2006.
Cassandra is not a party to this appeal.
During the early morning hours of April 3, 2007, Austin stopped breathing and paramedics took him to the local hospital; the three-month-old baby was later transferred to Childrens Hospital. Austin had suffered brain damage and was placed on life support. Ryder was detained in a licensed foster home.
The parents gave the following account: On April 2, Brandon went to work and Cassandra stayed home with the twins. That night, Brandon and Cassandra took turns sleeping while the other took care of the babies. Cassandra wanted to sleep first and went to bed at 9:15 p.m. Brandon joined Cassandra in bed at about 10:30 p.m. At 12:45 a.m. one of the twins was crying. Brandon got up to take care of the baby. At 1:06 a.m., Cassandra heard a baby scream, got up to find out what was happening, and saw Brandon holding Austin to his chest. Brandon told Cassandra that Austin was fine but that he wanted to be fed. Cassandra returned to bed. Brandon awoke her at 1:30 a.m. and told her that Austin was not breathing.
During a subsequent interview with police detectives, Brandon disclosed that he had shaken Austin in an effort to get him to be quiet. Brandon said that he was tired and frustrated when he shook Austin, and that he did not mean to harm Austin. Brandon was arrested and charged with willful child cruelty involving possible injury/death.
On April 6, Austin was declared brain dead. He was taken off life support and died that afternoon.
The San Diego County Health and Human Services Agency (Agency) subsequently filed an amended dependency petition on behalf of Ryder, adding an allegation that Brandon had caused the death of another child through abuse or neglect. (§ 300, subd. (f).)
For the upcoming jurisdictional/dispositional hearing later that month, Agency recommended that Ryder be declared a dependent child and that he be placed in out-of-home care. Agency also recommended that the court order reunification services for Cassandra, but not for Brandon.
At the jurisdiction hearing, Brandons counsel requested a trial. The jurisdiction hearing was continued numerous times and was not held until October 18 and 19, because the parties were awaiting the autopsy report, which was not completed until mid-August.
During the six months prior to the contested jurisdiction hearing, Cassandra started participating in services and progressed to unsupervised visits with Ryder at the Agencys office. However, Cassandra had a number of incidents involving heavy consumption of alcohol, including an incident during which she drove while intoxicated, with four children passengers. She was taken to the hospital by ambulance for alcohol poisoning. The social worker recommended that supervised visitation be reinstated.
On June 25, Ryder was ordered detained in the home of the paternal great-grandparents.
The autopsy report identified the cause of death as traumatic head injury, and the manner of death as homicide. The report noted that Austin suffered a blunt force injury to his head. The autopsy showed that Austin had scalp contusions with bilateral acute subdural hemorrhages, subarachnoid hemorrhage, bilateral retinal and optic nerve sheath hemorrhages and subdural hemorrhage of the spinal cord.
Deputy medical examiner Bethann Schaber, who performed the autopsy, opined that the brain injuries occurred shortly before Austin experienced difficulty breathing. Schaber further opined that these injuries, as well as bruises on his scalp, were caused by blunt force trauma — either something striking Austins head or the childs head striking something else.
Dr. Cynthia Kuelbs, the medical director of the Chadwick Center at Childrens Hospital, opined that Austins injuries could have been caused by a combination of shaking and impact.
In mid-August, Brandon was released from custody after his bail was reduced and his family posted bond. In mid-September the criminal court lifted its previous order prohibiting contact between Brandon and Ryder, and authorized the social worker to supervise visits between them.
At the contested jurisdictional/dispositional hearing, social worker Meredith Wilson continued to recommend that services be denied to Brandon on the ground that Brandon posed a risk to Ryder. Wilson pointed out that Brandon had recanted his statement about shaking Austin and denied having made any statement inculpating himself. Wilson explained that although she did not believe Brandon had intended to injure Austin, the injuries nonetheless occurred and Brandon "[had not] recognized that [he] caused the death of his son."
Wilson, who had observed three or four visits between Brandon and Ryder at the paternal great-grandparents home, testified that Brandon was "very good with his son" during the visits. Wilson opined that Ryder would benefit from continued visitation with Brandon.
The court sustained the amended petition, declared Ryder a dependent child, removed him from the physical custody of his parents and placed him with his paternal great-grandparents. The court ordered Agency to provide services to Cassandra, but denied services to Brandon under section 361.5, subdivision (b)(4). The court continued its order that Brandon receive supervised and reasonable visitation with Ryder.
DISCUSSION
Brandon contends that the juvenile court erred by denying him reunification services because it was in Ryders best interest for his father to receive services.
As a general rule, when a child is removed from a parents custody, the juvenile court must order reunification services. (§ 361.5, subd. (a).) However, there is an exception to this rule if the court finds, by clear and convincing evidence, that any one of the 15 situations set forth in section 361.5, subdivision (b) exists. That subdivision reads in pertinent part:
"(b) Reunification services need not be provided to a parent . . . described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] . . . [¶]
"(4) That the parent . . . of the child has caused the death of another child through abuse or neglect."
"Once it is determined one of the situations outlined in subdivision (b) applies, the general rule favoring reunification is replaced by a legislative assumption that offering services would be an unwise use of governmental resources." (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) One appellate court has noted that when a parent causes the death of a child, the situation "is simply too shocking to ignore" in considering whether that parent should be offered reunification services with respect to a surviving child. (In re Alexis M. (1997) 54 Cal.App.4th 848, 850-851.) "The fact of a death and a subsequent petition . . . arising out of that death simply obliterates almost any possibility of reunification . . . ." (Id. at p. 851, fn. 2.)
"Subdivision (b)(4) of section 361.5 evidences the Legislatures recognition that some situations are so extreme as to require extraordinary caution in recognizing and giving weight to the usually desirable objective of family preservation." (In re Ethan N. (2004) 122 Cal.App.4th 55, 65.) Thus, when a juvenile court finds a basis for denying reunification services under section 361.5, subdivision (b)(4), it is prohibited from ordering reunification services unless it finds by clear and convincing evidence that reunification would serve the childs best interest. (§ 361.5, subd. (c).)
The parent responsible for the previous death of another child bears the burden of affirmatively showing at the dispositional hearing that reunification would be in the best interest of the surviving child. (In re Ethan N., supra, 122 Cal.App.4th at p. 66.) On appeal, we review a juvenile courts decision as to a childs best interest for an abuse of discretion. (Id. at pp. 64-65.)
In In re Ethan N., supra, 122 Cal.App.4th at pages 68 to 69, the appellate court noted the enormity of the parents burden to establish best interest where that parent was responsible for the death of another child, and observed that a successful showing would be rare. However, the court noted that a finding under section 361.5, subdivision (b)(4) could be overcome, and suggested the following factors as most determinative of a childs best interest: the gravity of the problem necessitating dependency; the parent/child bond and; most importantly, the childs need for stability and continuity. (In re Ethan N., at pp. 66-69.)
The gravity of the problem that led to Ryders dependency could hardly be higher — Brandon caused the death of Ryders sibling. "It is difficult to imagine any problem more grave than the previous death of another child caused by abuse or neglect." (In re Ethan N., supra, 122 Cal.App.4th at p. 66.)
Brandon did not offer evidence that he and Ryder had a strong bond. At the time of the contested jurisdictional/dispositional hearing, Ryder was nine and one-half months old. Brandon had been incarcerated for almost half of Ryders life. Further, Brandon was unable to have contact with Ryder for an additional month after Brandon was released from custody because of the criminal courts no-contact order, which was not lifted until one month before the jurisdictional/dispositional hearing. The ensuing visits went well, but there was no showing of bonding.
The third factor — Ryders need for stability and continuity — is the only one that could augur in Brandons favor in a best interest analysis. Brandon points to the childs placement in the home of the paternal great-grandparents and argues that because Brandon is going to remain a part of Ryders life, it would be in Ryders best interest for Brandon to receive services. Whether Brandon will in fact remain a part of Ryders life will depend on whether the great-grandparents or other paternal relatives adopt Ryder, which in turn will depend on whether Cassandras efforts at reunification are successful or not. Thus, Brandons argument is largely speculative.
Moreover, from a practical perspective, it is extremely unlikely that Brandon will be able to reunify with Ryder. Because Ryder was less than three years old when he was first removed, reunification services could be limited to six months. (§ 361.5, subd. (a)(2).) Brandon is facing criminal prosecution and the possibility of incarceration. As the juvenile court noted, as long as the criminal case is pending, meaningful therapy for Brandon is unlikely to occur because Brandon will have to be guarded about what he reveals in therapy.
"[R]eunification services are offered to parents whose children are removed from their custody in an effort to eliminate the conditions leading to loss of custody and facilitate reunification of parent and child." (In re Baby Boy H., supra, 63 Cal.App.4th at p. 478.) Given the circumstances here, this is a case where it would "be fruitless to provide reunification services . . . ." (Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 750.) In this case, "offering services would be an unwise use of governmental resources." (In re Baby Boy H., supra, 63 Cal.App.4th at p. 478.)
The court acted well within its discretion when it determined that providing reunification services to Brandon would not serve Ryders best interest. We note that the court continued its order that Brandon be allowed reasonable supervised visitation. Also, Brandon can secure services, such as a parenting course, on his own. In the event that there is a change in circumstances that would render providing services to Brandon to be in Ryders best interest, Brandon may file a section 388 petition and seek a modification of the order denying services.
DISPOSITION
The dispositional order is affirmed.
We concur:
HUFFMAN, Acting P. J.
McINTYRE, J.