Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate. Marsha Slough, Judge. Super Ct. No. J223735.
Nicole Williams for Petitioner.
No appearance for Respondent.
Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Real Party in Interest.
OPINION
HOLLENHORST, Acting P. J.
INTRODUCTION
Petitioner J.Y. (Mother) challenges certain jurisdictional findings and also seeks to overset a ruling by the trial court denying her reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(6)., We grant the petition in part; most importantly, we find that the trial court erred in denying reunification services.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The cited provision authorizes denial of services if the minor has been adjudicated a dependent of the court due to “... the infliction of severe physical harm to the child... by a parent or guardian... and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian.” (§ 361.5, subd. (b)(6).)
The minor, K.Y, is seven years old. She had been adopted by Mother—a cousin—in 2007 after a troubled trip through the dependency process. In September 2008, school personnel reported that K.Y. arrived at school with visible burns on her feet and red marks on her buttocks and legs. At the time, K.Y. had been absent from school for two weeks, with Mother reporting that she had chicken pox.
K.Y. told the responding social worker that her “father,” R.M., had “disciplined” her by forcing her into a bath of very hot water. The minor had reported an earlier similar incident to her therapist, but the allegations were not established at that time. The minor also told the social worker that R.M. had struck her in the face and that both he and Mother punished her with a belt. She also told interviewers that she had put cold towels on her burns after she had gone to bed and that neither Mother nor R.M. came to check on her.
It was shortly learned that R.M. was not K.Y.’s biological or adoptive father, but was Mother’s “significant other.”
When Mother was contacted, she attributed the burns to the fact that the tub had recently been resurfaced, and said that she had not taken K.Y. to a doctor immediately because she thought she could treat the burns herself. She denied owning a belt, but K.Y. had told authorities where the belt she claimed to have been struck with could be found and it was. Mother, who worked during the day, had entrusted R.M. with caring for K.Y. while she was not attending school, which included changing the dressings on the burns. R.M. took a leave of absence from his own job during this period.
She indicated that she had been told that the tub should not be used for 48 hours. However, records showed that it had actually been resurfaced six days before the incident.
Mother claimed that the belt was in a bag to be given away, and humorously indicated that she “wished” she could use the apparently size small belt.
After the minor was examined by a doctor, Mother was told that the burns were immersion burns of second and third degree severity; she whispered, “I didn’t know, I didn’t know.” She also apologized to the social worker for her earlier “behavior and attitude.”
However, Mother’s expressions of surprise and remorse were contradicted by statements K.Y. made when interviewed. She said that Mother saw her injuries the next day and that K.Y. told her what had happened. She heard Mother ask R.M. why he had put her in hot water, and R.M. apologized to K.Y. the next day.
Mother then obtained a restraining order against R.M. A few days later, she told the social worker that when she had seen the burns, she told R.M. to take the child to a doctor. When R.M. produced medication, she believed that he had in fact taken K.Y. to a doctor, although in fact he had obtained the medication from his workplace. However, R.M. told police investigators that Mother did not ask him to take K.Y. to the doctor and that they agreed she should be treated at home.
R.M. worked as a surgical technician.
Mother has an MBA degree from Stanford University and was employed as a director of human resources at Alcoa. A 15-year marriage ended in divorce in 2003, which Mother attributed in part to her stress over her inability to have the children she “desperately” wanted. She told the social worker that K.Y. was born drug dependent and that her biological parents both suffered from mental health issues. K.Y. was removed from her parents due to neglect, but passed through several placements due to inappropriate behaviors until she was placed with Mother. Mother is also attempting to adopt a second child, her biological niece H.Y.
R.M. had accepted substantial child care obligations because Mother would not return from her job in Carson until about 8:00 o’clock in the evening. R.M. would pick K.Y. and H.Y. up from daycare after his work shift ended.
Mother denied any knowledge that R.M. might have previously abused K.Y. and told the social worker that their relationship seemed appropriate. She described a “Family Immunity Night” during which all family members could voice any criticisms or complaints and indicated that K.Y. never complained about R.M.
In the initial full report, the social worker was critical of Mother for not taking time off from work to “nurture and heal her herself.” The social worker also took the view that the fact that Mother “allow[ed] the perpetrator to remain in the home, and continue to care for her children, speaks volumes as to her commitment to motherhood.”
The social worker also noted instances of Mother’s lack of cooperation and her clear prevarication about the cause for the child’s injuries. Finally, the social worker expressed doubt that Mother could adequately care for the children and continue to work, suggesting that her work was her main concern. It was therefore recommended that an adoptive home be sought and that services not be provided to Mother.
K.Y.’s aunt, who had cared for her previously, was interested in adopting her if she did not return to Mother.
At the lengthy jurisdictional hearing, Mother began by stipulating that the injuries to K.Y. were nonaccidental. Next, a forensic pediatrician, who had examined K.Y., testified that due to the extent of the burns, home treatment was wholly inappropriate and the minor should have been hospitalized due to the risk of shock. The witness also indicated that due to the lack of prompt treatment, there might be permanent scarring.
This witness also testified that the minor told her that when Mother learned what had happened (this included K.Y.’s statement that R.M. had also punched her in the nose) Mother became very angry and indicated that she should punch R.M. in return. The witness also related K.Y.’s statement that she would “get whippings” from both Mother and R.M. with a belt, and that they would put her in a dark room or the garage as punishment.
Mother then took the stand. She admitted having used a belt to “spank” the minor in 2007, but denied making her stay in a dark room. Mother explained that the garage had a “motion detector” that would turn on a light if there was movement, suggesting that K.Y. could not have been truthful in that respect.
Mother testified that R.M. had told her that the water was not “that” hot and had suggested that the burns might be chemical from the tub refinishing, and she credited this at the time. She also testified that she told R.M. to take K.Y. to the doctor and believed that he had done so. She admitted that the excuse of “chicken pox,” which she had given to K.Y.’s school, was untrue.
Mother stated that the minor was originally out of school for chicken pox, but that the burn absence overlapped. Her testimony at the hearing also indicated, however, that she noticed “pimples” after K.Y. was burned, and that she believed R.M. had taken the minor to a Dr. Woodard, who gave him a diagnosis slip. However, this “slip,” which Mother claimed to have seen, was not produced and the matter remained murky.
Mother testified that she found it hard to believe that R.M. had hit K.Y. in the face, but that she did believe K.Y. because the latter’s statements were consistent—“she continues to say he punched her in the face.” Clearly somewhat reluctantly, she testified that she believed that R.M. had deliberately placed K.Y. in the hot bath and blamed herself for not personally taking the child to the doctor. She also admitted that when she did take K.Y. to a doctor for unrelated reasons after the incident, she did not tell the doctor about the burns (and indeed concealed them). Her explanation was that she believed the burns were chemical and that she had “failed as a parent”—presumably by creating a hazardous environment during the remodeling of the home.
Mother explained that K.Y. had been diagnosed with post-traumatic stress and attachment disorders, that she had been in treatment with a therapist, and that she was receiving medication. She testified that she stopped using a belt for punishment as soon as the minor’s therapist told her that it was merely fueling K.Y.s anger—anger stemming from mistreatment and betrayal by her biological parents. At the time, Mother took classes in order to understand how to deal with K.Y.’s issues.
A tape of K.Y.’s interview with investigative workers was also played for the court. K.Y. described receiving “whuppins” with a belt by Mother and R.M., Mother calling her a “bitch,” and punishment by being forced to stay in a dark garage or bathroom. K.Y. said the ointment Mother purchased the next morning felt “good” and stopped the pain. K.Y. also said that R.M. had punched her in the nose twice, but that she never told Mother.
Interestingly, K.Y. later told the social worker that her foster mother also called her “names,” but this was found to be untrue.
The trial court found that K.Y. came within the jurisdiction of the juvenile court pursuant to section 300, subdivisions (a), (b), and (c), and also found an allegation pursuant to subdivision (i) to be true.
The allegations found true under section 300, subdivision (a), were that the minor suffered severe physical harm “inflicted nonaccidentally... by the... parent or guardian” and that the injury was suffered while in Mother’s “custody.” The subdivision (b) finding related to the failure to provide medical treatment. The subdivision (c) finding was that K.Y. was at risk of suffering severe emotional damage due to the failure to “address the medical and emotional needs” following the injury. Subdivision (i) covers “cruelty” and that “cruelty” was committed by a member of the household (R.M.) and by Mother in failing to seek immediate medical treatment.
The matter then proceeded to the dispositional stage. The minor’s current caretaker—who had previously cared for her before Mother adopted her—testified that K.Y.’s behavior was better than it had been during her first stay. The minor looked forward to her visits with Mother and was “very excited” to see her. She wrote Mother letters saying, “I love you.” Later, the minor’s attorney (who also supported denial of services) acknowledged to the court that K.Y. wanted to go back to Mother.
The witness works as “a principal for San Bernardino Schools, Special Ed Department.”
Mother then testified again. She was currently in counseling on general subjects, as she had been “off and on” since 2001. She had also begun to see a second therapist specifically with respect to K.Y.’s injuries. She felt that she needed assistance in parenting techniques and felt badly that she had apparently not been as close with K.Y. as she had believed. Mother also testified that she had recently completed a parenting class. In connection with her planned adoption of H.Y., she had also taken special classes in early 2008 in the care of medically fragile children and children with behavior problems. She had also recently enrolled in therapy concerning domestic violence.
Mother testified that she had made full disclosure to one of her therapists concerning her attempts to conceal what had happened to the minor and testified affirmatively that this case “has to do with her being held down in the bathtub and me not taking her to the doctor to seek immediate medical care.” When asked what she felt she needed to do differently, Mother said, “I need to listen... I need to sit down with her one-on-one and have a conversation rather than having another person interject saying, that’s not true and that’s not what happened. Hear her and hear her inner voices when she’s talking to me.”
Mother also indicated that she was planning to testify against R.M. in the criminal case stemming from the abuse. It appears that Mother was also facing charges, but she waived her Fifth Amendment right in this proceeding because “I want my daughter back.”
Mother acknowledged that she had been “defensive” with the social workers and explained, “the natural response when someone attacks me [is to] become defensive, but I’ve got to be able to listen and then respond properly.” Mother also testified that she had taken a new job much closer to home, with shorter hours. She had arranged to shorten an upcoming business trip in order not to miss a visit with K.Y., although she thought it might have negative effects on her job. Mother also expressed an intention to rely on family members to assist her as “they have really made themselves available to me.”
The social worker then took the stand. She testified that when the San Bernardino County Department of Children’s Services (Department) makes a referral for counseling, it ensures that the counselor is fully apprised of the issues. She agreed that Mother had “absolutely” not missed any visits and that they “always go well.” However, she explained her recommendation for “no services” by noting that on the night after the abuse, K.Y. “wasn’t able to go to her mom the night that she was in so much pain.” She thought that “it speaks to—maybe the situation in the home that was present prior to this incident.” She also expressed the view that “this was a fairly punitive relationship in that Mom had extremely high expectations of this child.... [¶]... I feel that the warmth was lacking. The relationship just—it wasn’t there to give [K.Y.] what it was that she needed in order to make up for all the losses, the trauma that she had in her earlier life.”
Asked if she believed that K.Y. was “bonded” to Mother, the social worker agreed that “[K.Y.] loves the visits. She looks forward to them. They interact really well together. Mom goes to whatever she has to to make it a pleasant two hours.... [¶] My question would be, did she have it before?” “I can say that things probably have changed.”
When asked further about her recommendation for no services, the social worker expressed the opinion that it might be better to find K.Y. a nonrelative home, “which does not reflect any of the history that has gone on in the past with the whole family situation and to have a fresh start.”
Finally, the social worker from Los Angeles County who handled both K.Y.’s adoption and the proposed adoption of H.Y. testified. She gave the opinion that Mother and K.Y. were “bonded” and testified that she had observed K.Y. on Mother’s lap and Mother hugging K.Y. She gave the opinion that services should be offered and that K.Y. would be “safe if we continue to work with this family.”
The trial court found that Mother’s progress “toward alleviating or mitigating the causes, which necessitated treatment, has been minimal.” It found that services were not mandatory due to the true finding of “infliction of severe physical harm... by a parent or guardian.” (§ 361.5, subd. (b)(6); see also § 300, subd. (b).) It further found that it would not benefit K.Y. to offer Mother reunification services.
DISCUSSION
Mother both attacks some of the jurisdictional findings and also argues that, even if the findings were proper, the court erred in denying reunification services. We agree in part with her first arguments and entirely with her second.
A.
Mother first argues that the finding under section 300, subdivision (a), was improper because the statute requires the injury to have been inflicted by “the” parent or guardian who is the subject of the finding and the “custody” status of the minor is irrelevant. We agree. The Department does not attempt to justify this finding on the merits.
Infliction of a nonaccidental injury while “in the custody of the mother.”
Instead, the Department argues that Mother has waived the objection by not raising it in the trial court and that counsel “conceded to the wording of the petition.”
We acknowledge that there is authority that a challenge to the pleadings in a dependency matter is waived if not made before the trial court. (In re Shelley J. (1998) 68 Cal.App.4th 322, 328-329; cf. In re Alysha S. (1996) 51 Cal.App.4th 393, 397 [relying on the rules applicable to civil proceedings].) However, unlike Shelley J. and a case following that decision (In re James C. (2002) 104 Cal.App.4th 470), here the issue is not simply whether the allegations were sufficient; the real problem is that the conduct alleged, and the conduct shown by the evidence, simply does not support the exercise of jurisdiction. Given the importance and consequences of dependency findings, we believe that if the evidence shows that the statutory conditions for a dependency finding do not exist, a parent may not be barred from challenging the order whether the challenge is viewed as one of pleading or the sufficiency of the evidence. We do not think a separate basis for dependency can be created either by bad pleading, by the parent’s failure to challenge the pleading, or both.
Given this approach, it is apparent that the finding under section 300, subdivision (a), cannot stand. That subdivision clearly requires that an injury have been inflicted by the parent or guardian. It is undisputed that the injuries to K.Y. were inflicted by R.M. at a time when Mother was not present. The finding must be stricken.
B.
Mother next attacks the sufficiency of the evidence to support the “cruelty” finding under section 300, subdivision (i). The Department again concedes that she did not cause the minor’s injuries and that she could not have predicted R.M.’s actions. However, it argues that Mother’s failure to take the minor to the doctor caused her to suffer unnecessary pain at least the day after the incident.
Mother argues that “cruelty” must be construed to include the intent to cause pain and suffering. (See Black’s Law Dict. (8th ed. 2004) p. 405, col. 2.) However, a standard similar to “conscious indifference” has also been recognized in the dependency context. (See In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1473 [commenting on the father’s “cavalier indifference” to inflicting pain on the minor].) “Deliberate indifference” to suffering will also implicate the “cruel and unusual punishment” provisions of the United States Constitution. (Farmer v. Brennan (1994) 511 U.S. 825, 828.) In the context of dependency proceedings and given the nature of a parent’s natural obligation to the child, we think that a parent who demonstrates “deliberate indifference” to a child’s suffering may properly be held to have acted with “cruelty.”
In this case, we agree that the evidence that Mother was “cruel” in not taking K.Y. to a doctor is far from overwhelming. However, under the “substantial evidence” standard of review (In re Shelley J., supra, 68 Cal.App.4th at p. 329) the finding must be upheld. The burns to the minor’s feet were obviously apparent and the trial court was clearly skeptical of Mother’s claim that she did not “discover” that the burns extended from K.Y.’s feet up her legs to her buttocks. There was some evidence suggesting that Mother and R.M. were concerned that if a doctor saw the injuries, an inquiry might be undertaken. Mother concealed the injuries not only from K.Y.’s school, but also from a pediatrician who saw K.Y. on an unrelated matter. Thus, the trial court could have reasonably found that Mother, in fact, chose not to seek immediate medical care for the minor for selfish reasons despite the fact that she must have known the burns were painful. We acknowledge as well that Mother did obtain an over-the-counter ointment or cream, but this effort was not sufficient to make the finding inappropriate.
Even if the burns were accidental, any official concerns might have had an affect on Mother’s desire to adopt H.Y.
Our decision on these first two points leaves intact the jurisdictional findings under section 300, subdivisions (b) and (c).
C.
We now turn to the most serious issue: Whether the trial court abused its discretion in ordering that reunification services not be provided to Mother. We conclude that it did.
Services were denied under section 361.5, subdivision (b)(6), which permits the court to deny services if the minor has been found to fall under section 300 as the result of “the infliction of severe physical harm... by a parent or guardian.” Denial of services is further conditioned on the fact that the trial court must make a finding that “it would not benefit the child to pursue reunification services with the offending parent.” The Department concedes that this can only apply to Mother’s failure to obtain care for the minor. (See Pablo S. v. Superior Court (2002) 98 Cal.App.4th 292, 301.) Once again we review for substantial evidence on factual issues (In re Harmony B. (2005) 125 Cal.App.4th 831, 839) and for abuse of discretion on the ultimate decision of whether or not to offer reunification services (In re William B. (2008) 163 Cal.App.4th 1220, 1229).
Section 361.5, subdivision (c), provides that when a parent falls under (inter alia) subdivision (b)(6), services shall not be provided unless the court finds that to do so is in the minor’s best interests. But subdivision (b)(6) itself only authorizes the denial of services if the court finds that it would not benefit the minor to offer services. If the court properly makes a (b)(6) finding of “no benefit,” how could it ever make a section 300, subdivision (c) finding of “best interests”?
Even if we assume that section 361.5, subdivision (b)(6), applies to Mother and that severe harm was inflicted by her when she failed to have K.Y.’s burns treated, the trial court simply abused its discretion in refusing to order reunification services. There is no substantial evidence that to do so would not benefit the minor, and there was overwhelming evidence that it was in the minor’s best interests to attempt reunification.
In making the “benefit” determination, the court may consider any information it deems relevant, which shall include the nature and circumstances of the infliction of harm, the severity of the minor’s emotional harm, any history of abuse to siblings, the likelihood that the family can be reunified in 12 months, and the child’s desires. (§ 361.5, subd. (h).)
That is, the suffering caused by the failure to take K.Y. to the doctor, as that is the only harm caused by Mother.
On the first point, the “infliction” was a matter of omission, and although we have upheld the finding of “cruelty,” we have also noted the tenuous nature of the evidence. There was no history of abuse to other children, and minor’s own attorney conceded that she expressed a desire to return to Mother. (See In re William B., supra, 163 Cal.App.4th 1220 [a nine-year-old boy’s evaluation of his family circumstances and desire to remain with his caretakers given great weight].)
Even the social worker admitted that K.Y. enjoyed her visits with Mother and, in fact, looked forward to them. She also testified that Mother interacted affectionately with K.Y. and made efforts to see that K.Y. enjoyed the visits. However, the social worker attempted to undercut the effect of these facts by speculating that Mother had previously engaged in a “fairly punitive relationship” in which “warmth was lacking” and Mother “wasn’t there to give K.Y. what she needed.” She also hypothesized that Mother’s concern for K.Y.’s happiness during the visits was something new. The only evidence the social worker cited to support this conclusion was that the minor had not gone to Mother with her burns during the night after they were inflicted. It is true that the image of K.Y. quietly attempting to alleviate her pain with wet towels is heartrending, but to leap from the natural sympathy to the conclusion that she did so because she knew she could not expect help from Mother is not logical. Certainly, the social worker’s speculations cannot be allowed to control the destiny of both K.Y. and Mother in the absence of competent psychological testimony explaining K.Y.’s possible motives.
Even if it were “new,” surely it would weigh in favor of Mother’s willingness to change.
It is to be noted that K.Y. readily told Mother how she had been injured the next morning.
Next, the trial court should have considered that K.Y. is a child with special emotional needs who presents admitted parenting challenges. The social worker’s offhand opinion, made without any visible qualifications, that K.Y. might do better in a nonrelative home where her “history” would not be a factor, may have rested on the optimistic belief that such a permanent home would be readily available. Common sense suggests that neither the Department nor the courts should be overly eager to give up on a parent unless there is good reason to believe that there are better alternatives.
Which would also disqualify her current caretaker, her aunt.
Turning to Mother, unusually for dependency matters, there is little question she is capable of providing for K.Y.’s physical and material needs. She is not a drug addict and has no mental health issues. She has demonstrated her commitment to K.Y. not only by independently enrolling in educational and counseling modules, but by making drastic changes in her life with respect to distancing herself from R.M. and changing jobs to the benefit of her relationship with K.Y.
There may be a temptation to say, “Well, Mother can find her own ‘services,’ so she has not been harmed by the court’s failure to provide them.” However, if services are denied, the burden would be on Mother in the future to prove that changed circumstances justified the modification of the current orders. If services are authorized, however, then at each review hearing the presumption is for the return of the minor, and the burden would be on the Department to show detriment. (§§ 366.21, 388.)
Given these circumstances—the possible difficulty of finding a new placement, the minor’s bond with Mother, the fact that Mother did not personally injure or abuse the minor, and Mother’s own considerable resources—there is simply no substantial evidence that it would not benefit the minor to at least attempt reunification. Looking at the reverse, there is clear and convincing evidence that the minor’s best interests require that the attempt be made.
The trial court apparently followed the social worker’s lead in focusing almost solely on Mother’s reprehensible conduct in failing to take K.Y. to the doctor and covering up her injuries. We agree that this showed poor judgment to say the least. But we agree with Mother that in its dismay over Mother’s conduct, the trial court failed to make a thorough and reasoned analysis of where the minor’s best interests really lay.
We are not saying that Mother will reunify with the minor; certainly she has issues to address with her therapist and we agree that she seems not to have been completely forthcoming with the court concerning her own reaction to the incident. But to say that it would not benefit the minor to attempt to reunite her with a mother who loves her and who she loves constituted an abuse of discretion.
DISPOSITION
The petition for writ of mandate is granted in part. Let a peremptory writ of mandate issue, directing the Superior Court of San Bernardino County to vacate the jurisdictional finding under section 300, subdivision (a), and the order denying reunification services to Mother, and to enter a new order directing that such services be provided.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
We concur: KING , J., MILLER , J.