Opinion
A103840. A103841.
11-18-2003
In re T. et al., Persons Coming Under the Juvenile Court Law. KATHLEEN W. et al., Petitioners, v. SAN FRANCISCO SUPERIOR COURT, Respondent; SAN FRANCISCO DEPARTMENT OF HUMAN SERVICES, Real Party in Interest.
I.
INTRODUCTION
Kathleen W. (mother) and Troy G., Sr. (father) are parents of the minors, one-year old A. and two and one-half-year old T., dependent children of the juvenile court. Pursuant to California Rules of Court, rule 39.1B, the father and mother have filed separate petitions for extraordinary relief seeking review of the orders made by the juvenile court denying reunification services and setting a permanency planning hearing pursuant to Welfare and Institutions Code section 366.26. This hearing is currently set on December 17, 2003. The mother contends the evidence was insufficient to support the courts finding that the minors came within the provisions of section 300, subdivisions (e) [severe physical abuse of child under five] and (i) [acts of cruelty]. Both parties claim that the court erred in refusing to order reunification services. We find the orders taking jurisdiction, terminating reunification services, and setting a selection and implementation hearing (§ 366.26 hearing) were supported by substantial evidence. Accordingly, we deny their petitions for extraordinary relief on their merits. (& sect; 366.26, subd. (l).)
To maintain anonymity and for the sake of convenience, we will refer to the children involved in this proceeding by their first initials only.
The Welfare and Institutions Code provides that a petition for extraordinary relief is generally the exclusive means by which an aggrieved party may challenge an order setting a permanent planning hearing. (Welf. & Inst. Code, § 366.26, subd. (b)(1).) These petitions for extraordinary relief are governed by procedures set forth in California Rules of Court, rule 39.1B. All statutory references are to the Welfare and Institutions Code. All rule references are to the California Rules of Court.
II.
FACTS AND PROCEDURAL HISTORY
A prior dependency existed on T. in San Francisco County from May 21, 2002, until July 25, 2002. The dependency resulted from a physical altercation between both parents while they were intoxicated in which T.s head was struck against the wall causing the baby, who was then five weeks old, to suffer a very serious skull fracture and other injuries to his head. The father was on parole at the time and was returned to San Quentin Prison, where he served four months. The mother was convicted of misdemeanor cruelty to child. The child remained out of home for approximately two months and was then reunified with his mother at Jelani House. However, two months later the mother left the program without permission, leaving her infant son. The child was again reunified, this time to both parents as an in-home dependent. At that time, both parents were enrolled in outpatient drug-treatment programs. The dependency case was ultimately dismissed on July 25, 2002.
Since the dismissal of the last dependency, the couple had their second child, A. The family was living in a small apartment with numerous relatives including the minors maternal grandmother. According to the relatives, after the dependency case was dismissed, the couple started drinking and fighting again.
The San Francisco Police Department made the referral that resulted in the most recent dependency petition. The police responded to a 911 call on January 24, 2003, at the minors residence. While responding to this call, the police officers noted T. had bruises on his face, back and buttocks. The father had left the home by the time the police arrived, but the mother was present.
According to the maternal grandmother, who witnessed the abuse, the father became angry with T. because he did not respond to his fathers instructions to sit down. The father grabbed the toddler by the neck, picked him up off the floor, and threw him onto the sofa. Medical staff noted the lateral bruising around the toddlers neck, which is consistent with the maternal grandmothers version of the incident. Several hours later, the father became upset when T. was throwing toys. When T. did not respond to his fathers request to stop throwing toys, his father hit T. at least two times in the back with a knuckle from his fist. Medical staff later noted at least two circular, deep bruises on T.s back, consistent with this description. Several hours after that, when the T. did not respond to his fathers order to put his toys away, the father grabbed the toddler by the arm, and kicked T. twice in his buttocks while wearing boots. Medical staff later noted severe bruising to both the toddlers buttocks and upper rear thighs, consistent with the described incident.
After the father left the house, the mother began drinking. According to the maternal grandmother, at approximately 6 or 7 p.m., the mother became angry with T. because he would not obey the request by his grandmother to stop throwing toys. According to the grandmother, the mother then took T. into the bedroom. At that point, the grandmother heard at least three loud slaps, the mother screaming and T. screaming. When the grandmother went into the room to see what was going on, she saw the mother holding T. by his neck. She was slapping T. across the face while T. cried. While she was hitting T., she was yelling at him, "Why dont you ever listen to me?" At that point, the grandmother observed that T. was bleeding from his mouth.
The mother admitted striking T. to the social worker but she claimed she was under the influence. However, she denied any knowledge that the father was abusing T.
Both children were taken the San Francisco General Hospital after being removed from the home. T. had severe facial and neck bruising as well as reports of facial and buttocks slaps. The doctors notes indicate T.s "injuries today are quite significant and specific for abuse . . . ." Although no injuries were noted on A., the doctor believed the infant was at "very high risk for abuse in the future."
When the mother was arrested on January 25, 2003, she was still on probation from the child endangerment charges stemming from the skull fracture that T. suffered as an infant. Her probation was revoked. She was charged with numerous felonies, including inflicting corporal injury on a child. On February 4, 2003, an arrest warrant was signed charging the father with five counts of felony child abuse, inflicting corporal injury upon a child and child endangerment. The fathers whereabouts were unknown until he turned himself over to the police in May 2003.
On January 28, 2003, the Department filed a petition alleging that A. and T. were minors described under section 300, subdivision (a) [serious physical harm], (b) [failure to protect] and (g) [no provision for support]. Later, the Department amended the petition to add that the children were minors described under section 300, subdivisions (e) [severe physical abuse of child under five], and (i) [cruelty].
The Departments social worker wrote: "It is this workers assessment that the parents are not capable of parenting their children. The Department has worked with this family in the recent past, providing the family with all available services, including extensive parenting classes. The previous case was dismissed because the assigned social worker was convinced by the parents that the family was capable of safely raising their children. However, only months after dismissal of that case, great bodily harm was inflicted on T.
Beginning on August 4, 2003, the court conducted the contested jurisdictional and dispositional hearing. Both parents were present at the hearing, although they were incarcerated at the time based on the injuries inflicted on T. The court heard the testimony of the maternal grandmother who witnessed the abuse, the social worker assigned to the case, and the physician who examined and treated T. At the conclusion of the hearing, the court sustained the dependency petitions for the minors. In setting the permanency planning hearing (§ 366.26), the court found that reunification services should be denied to both father and mother because reunification was not in the best interest of the minors. The court indicated that "[w]hile [the parents] may have completed [reunification services] and . . . said what had to be said in order to get the child back, I honestly dont believe they responded to the services, I dont think they benefitted [sic] by these services. . . ." The court also noted, "[W]ere not here to experiment with children and wind up having . . . a funeral, thats not what were about here."
Father and mother timely filed their writ petitions. Pursuant to rule 39.1B(m), the Department submitted an opposition brief on October 7, 2003. Pursuant to rule 39.1B(o), we now determine the petitions on their merits.
III.
DISCUSSION
A. Jurisdictional Findings
With respect to the courts jurisdictional findings, the mother contends there was insufficient evidence to sustain the petition under section 300, subdivisions (e) [severe physical abuse] and (i) [acts of cruelty]. However, because "[s]ection 300 contemplates that jurisdiction may be based on any single subdivision," a dependency judgment must be affirmed if substantial evidence supports jurisdiction under any one of the subdivisions. (In re Shelley J . (1998) 68 Cal.App.4th 322, 330; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.) We will therefore address only one of the bases for the courts assumption of jurisdiction——section 300, subdivision (e)——which provides for dependency when a child under the age of five is subjected to severe physical abuse. The mother contends that the abuse inflicted on T. was an isolated incident that did not constitute "severe physical abuse" within the meaning of section 300, subdivision (e).
Section 300, subdivision (e) provides in pertinent part that the juvenile court may adjudge a child to be a dependent child of the court if the child is "under the age of five 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. . . ." Section 300, subdivision (e) provides the following definition of "severe physical abuse": "any single act of abuse which causes physical trauma of sufficient severity that, if left untreated, would cause permanent physical disfigurement, permanent physical disability, or death; any single act of sexual abuse which causes significant bleeding, deep bruising, or significant external or internal swelling; or more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness; or the willful, prolonged failure to provide adequate food. . . ."
Jurisdictional findings are reviewed under the substantial evidence standard. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199; In re Tania S. (1992) 5 Cal.App.4th 728, 733.) The appellate court determines if there is "any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact. [Citation.]" (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)
Section 300, subdivision (e) defines "severe physical abuse," in part, as "more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness . . . ." When the juvenile court sustained the dependency petition pursuant to section 300, subdivision (e), the court made specific findings—supported by substantial evidence—that "the child was abused by the parents, physically abused by the parents, that he was hit in the back by the father, that he was kicked by the father, he was slapped by the mother, that that caused bruising to the chest and neck." The resulting injuries, shown in photographs and described in the medical records, were atypical of accidental bruising; and the court specifically found "there was severe abuse here . . . as defined in Section 300[, subdivision (e)]."
The courts finding was supported by the record. Dr. Shannon Thyne, the treating physician, testified that in her opinion, the bruising she observed was caused by "a significant amount of force" and "could have been associated with a bleed in the brain that could have been life-threatening . . . ." Dr. Thyne testified that the bruises on T. were "in the top five I have ever seen." She believed T.s injuries qualified as "great bodily injury." The social worker, who had 11 years of experience, testified that this was the worst case of physical abuse that she had in her caseload. T.s bruises were still visible a month after the beating was inflicted. The courts jurisdictional findings under subdivision (e) of section 300 are supported by substantial evidence.
In claiming the evidence was insufficient to support the courts findings, the mother additionally argues that "[t]he only person who testified that the parent was responsible for the alleged incidents of abuse was the maternal grandmother. . . . [¶] Her testimony was completely unreliable and self serving." The issue of credibility and the weight given a witnesss testimony is within discretion of the trier of fact. (In re Sheila B., supra, 19 Cal.App.4th at p. 199.) In appraising the maternal grandmothers credibility, the court was clearly influenced by the fact that the physical evidence comported with the maternal grandmothers account of how T.s injuries occurred. The court remarked, "[E]ven though one might attack the maternal grandmother, . . . there is some connection between the way she described the injuries happening and the way that the expert . . . described them . . . ." The court had before it all of the relevant evidence, and was in the best position to judge the grandmothers credibility. No error is shown.
B. Denial of Reunification Services
Both parents contend there was insufficient evidence to support the courts order denying them reunification services. We do not review the juvenile courts order de novo. Instead, the decision to deny a parent reunification services pursuant to section 361.5, subdivision (b), is reviewed under the substantial evidence test. (Curtis F. v. Superior Court (2000) 80 Cal.App.4th 470, 474; In re Rebekah R. (1994) 27 Cal.App.4th 1638, 1652; In re Rebecca H. (1991) 227 Cal.App.3d 825, 841-842.)
The Legislature has provided that in most cases, a parent whose child is removed for neglect or abuse should be provided with services to assist that parent in overcoming the problems that led to removal. (In re Marilyn H. (1993) 5 Cal.4th 295, 308.) However, the Legislature, by enacting section 361.5, subdivision (b), has discerned "it may be fruitless to provide reunification services under certain circumstances. [Citation.]" (In re Rebecca H ., supra, 227 Cal.App.3d at p. 837; see also In re Zacharia D. (1993) 6 Cal.4th 435, 446; Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 750.)
In particular, subdivision (b)(5) of section 361.5 allows the juvenile court to deny reunification services when the minor was brought within the jurisdiction of the juvenile court under section 300, subdivision (e), for severe physical abuse of a child under the age of five. (Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 163.) Subdivision (b)(5) of section 361.5 applies both to the parent who personally abuses the child and to the parent who, knowing the actual abuser, knows or reasonably should have known that the other person was physically mistreating the child. (In re Joshua H. (1993) 13 Cal.App.4th 1718, 1732.) Having found substantial evidence supports the courts order sustaining the allegations under section 300, subdivision (e), "the general rule favoring reunification services no longer applies; it is replaced by a legislative assumption that offering services would be an unwise use of governmental resources." (Raymond C. v. Superior Court, supra, 55 Cal.App.4th at p. 164.)
Notwithstanding the existence of the section 300, subdivision (e) finding, the court could still order reunification services pursuant to section 361.5, subdivision (c) upon a finding that the services were likely to prevent reabuse or a finding that failure to try to reunify the family would be detrimental to the child because the child was closely and positively attached to the parent. Subdivision (c) of section 361.5 additionally provides that "a past history of violent behavior . . . [among other factors] [is] among the factors indicating that reunification services are unlikely to be successful."
The juvenile court found: "I simply cannot find with the evidence I have before me that reunification is in the best interest of the child." The record amply supports the courts finding. T. had twice been the victim of severe physical abuse at the hands of his parents. First, when T. was five weeks old, the court removed T. from his parents care after T. suffered a skull fracture. Second, shortly after T. was returned to his parents custody and the dependency proceeding dismissed, T. suffered severe bruising on his face and body. Ts significant injuries occurred after his parents had received a multitude of services, including a substance abuse program, individual counseling, parenting education, and marital counseling that focused on domestic violence and substance abuse. The court remarked, "[S]upposedly they had gone through the training to avoid these situations but the benefits of that learning did not sink in, did not catch on and they were right back where they started." On this record, it cannot be said the court erred by finding reunification services were not likely to prevent reabuse.
The father asserts that the evidence clearly showed T.s close and positive attachment to him. He implies that failing to nurture the relationship through reunification services would harm T. The court made the following finding in that regard: "I do find that there is some connection between the mother and father, but . . . Im not sure that the bond is that close or that positive." The court was entitled to conclude on the facts before it that T.s attachment to his father was not significant enough to justify reunification services. The emotional damage inflicted on this very young child was manifested in several ways—at 23 months T. appeared to be developmentally delayed, he could only say a few words, he was disinterested in playing with toys, he screamed and cried if his foster mother was out of his sight, he appeared to be afraid he would get into trouble if he got near his sister, and he exhibited a fear of men. The fathers relationship with T., as portrayed in this record, is hardly the consistent, nurturing parental role that promotes the best interests of the child. The courts finding against the father on this point was proper.
IV.
DISPOSITION
The orders taking jurisdiction, terminating reunification services, and setting a selection and implementation hearing (& sect; 366.26 hearing) were supported by substantial evidence. The petitions for extraordinary relief are denied on their merits. (Cal. Const., art. VI, § 14; Kowis v. Howard (1992) 3 Cal.4th 888, 893-895 [written opinion on petition for extraordinary relief precludes further challenge to orders by petitioner in any subsequent appeal].) Because the section 366.26. hearing is set for December 17, 2003, our opinion is final as to this court forthwith. (Cal. Rules of Court, rule 24(b)(3).)
We concur: Kline, P.J. and Haerle, J.