Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ., Super. Ct. No. J231924, Wilfred J. Schneider, Jr., Judge.
Margaret K. Hogenson for Petitioner.
No appearance for Respondent.
Ruth E. Stringer, County Counsel, and Dawn M. Messer, Deputy County Counsel, for Real Party in Interest.
Robin Edmond for Minor.
OPINION
RAMIREZ, P.J.
Petitioner (Mother), the Mother of A.G., seeks writ review of the juvenile court’s order denying her reunification services and setting a hearing pursuant to Welfare and Institutions Code section 366.26. Mother contends she presented clear and convincing evidence that it was in A.G.’s best interest to continue to provide Mother with reunification services. Although A.G.’s counsel objected, San Bernardino County Children and Family Services (CFS) recommended that services be provided. We have reviewed the record in full. The earliest, and we believe truest, evidence supports the juvenile court’s apparent conclusion that Mother was more aware of the physical abuse that lead to the death of A.G.’s older sister than Mother has admitted. We conclude that the juvenile court did not abuse its discretion in making the “best interest” determination when it chose to place more emphasis on this evidence than on the testimony by Mother, social workers and counseling professionals that Mother had learned from this tragedy and was closely bonded with A.G.
A.G. was 18 months old at the time of the court’s ruling at issue here.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Statement of Facts and Procedure
On March 17, 2010, while Mother was at work, she received a telephone call from her boyfriend Johnny indicating that her daughter, five-year-old M.G., had fallen down and was not breathing. Upon returning home, Mother was unable to get a response from M.G. Mother and Johnny then took M.G. to the hospital. M.G. was declared brain dead and, on March 23, died after being taken off life support.
Initially, Johnny stated that M.G. had injured herself by some type of fall or mishap in a shed adjacent to the house. On the following day, during a polygraph examination, Johnny indicated that his previous story had been a lie. He stated that at the time of the incident, he got upset with M.G. because she did not properly fix some books in her bedroom. He initially struck M.G. in the abdomen with his hand and again told her to straighten up the books. After she was unable to do so, he placed both hands on her chest and pushed her backwards, causing M.G. to strike her head on a nightstand.
The record as a whole is somewhat muddied regarding the extent to which Mother was aware of the ongoing physical and sexual abuse to which Johnny had subjected M.G. The following facts are taken directly from the Forensic Consultation Report prepared by Dr. Amy Young, a forensic pediatrician whom the attending physician had asked to consult on M.G.’s case. Dr. Young prepared this report after examining M.G. and interviewing Mother, Johnny and other relatives in the middle of the night after M.G. was admitted to the hospital. The report is dated “3/17/10” with the notation “9:30 p.m.-2:30 a.m.”
The Forensic Consultation Report is an 11-page, hand-written document, followed by 23 pages of 8” x 10” close-up photographs documenting M.G.’s external injuries.
The juvenile court understandably placed great emphasis on this report. We also view it as highly accurate and unbiased because it was prepared: 1) by a medical professional with specialized training in evaluating the causes of such serious injuries to children; 2) close to the time of the injuries, before those involved had much time to craft their accounts to be less incriminating; and 3) by someone whose sole purpose was to find out what had actually happened.
Mother told Dr. Young that she had bathed M.G. the night before the fatal attack and that she had not noticed any bruises on M.G.’s back or buttocks. Mother stated that she had noticed only four marks on M.G.-one on her right shoulder and another on her right foot, plus a cut on M.G.’s chin and a scar on her upper back.
Johnny told Dr. Young that, two to three weeks prior, Mother had questioned him after finding blood on M.G.’s underpants and hearing M.G. complain that it hurt when she urinated. Mother did not initially volunteer to Dr. Young that she had found blood on M.G.’s underpants, but confirmed Johnny’s account only when Dr. Young questioned her on this point. A note in Dr. Young’s handwriting in the margin of page 3 states “Mother first denied bld-later said she forgot when asked about what [Johnny] stated occurred 3 wks ago.” Mother later told the social worker that it was not blood but feces that she had found on M.G.’s underpants.
Dr. Young conducted a genital exam, the notes of which are found in the Forensic Consultation Report, along with a drawing of M.G.’s injuries. The very first notation at the top of the page states, “On initial visual inspection-obvious bruising noted.” The report indicates that Dr. Young found “numerous red bruises on hymen, ” “bruising in vaginal canal along the floor, ” “2 discrete bruises in vestibule” and “blood pooled in fossa navicularis.”
Page nine of the Forensic Consultation Report, to which the juvenile court specifically refers in announcing its ruling, contains a series of diagrams which endeavor to document M.G.’s numerous visible injuries, which are primarily bruises. The injuries are clustered on the front of M.G.’s legs, her upper chest - right shoulder - neck area, and both arms, with a particularly dense grouping of bruises extending from M.G.’s upper back down to her buttocks. Dr. Young indicates with an arrow to the lower back and buttocks area “many bruises too numerous to document. See photos.”
Dr. Young interviewed M.G.’s paternal grandmother and aunt at the hospital, both of whom expressed concern that M.G. “had lost weight and become quiet and withdrawn.”
Johnny eventually “confessed [to the investigating detective] to abusing [M.G.] over a period of time consisting of but not limited to pushing, punching her in the stomach and slamming her head on various occasions.” M.G. had an old fracture of the L-5 vertebra. The social worker commented in the first jurisdiction/disposition report dated April 13, 2010: “The undersigned does not believe that [M.G.] had a fractured bone in her back and never complained about it.”
Mother told the social worker about Johnny and their relationship. The two would cuss and swear at each other while arguing. Johnny once became so angry during an argument that he had broken a window with his hand. On another occasion he threw a DVD player into a wall with such force that it put a hole in the wall. Mother knew that Johnny had been required to complete anger management classes through Juvenile Delinquency Court, and that he had just been arrested in 2009 for possessing a firearm. Mother also told Dr. Young that Johnny had been arrested on “gang charges” and that he used to “punch walls.” Mother told the social worker that she did not take any action when M.G. told her that it hurt to urinate because “[M.G.] also told her that she thought it was from soap but Mother states she never taught [M.G.] about the danger of using strong soap in the vaginal area and Mother does not know where [M.G.] might have learned about it.” The social worker commented in the April 13 jurisdiction/disposition report that “The undersigned does not believe that 5 year old [M.G.] diagnosed and solved her problem of painful urination.”
CFS filed an amended juvenile dependency petition on April 12, 2010, contending that A.G. came within the jurisdiction of the juvenile court because of a substantial risk that A.G. would suffer serious physical injury or harm if she remained in Mother’s care. The petition alleged that A.G.’s sister, M.G., had been sexually abused and died as a result of physical abuse, and that Mother knew and/or should have known of the abuse, yet failed to protect M.G. Mother denied the allegations; a contested jurisdiction hearing was set. At the May 18 hearing, Mother submitted the matter based on the April 13 jurisdiction/disposition report. The court found the allegations to be true and set a contested disposition hearing. After various continuances, the matter was heard on August 24, 25 and 31, 2010.
Several witnesses testified that they were impressed with Mother’s progress in improving her parenting skills and her bond with A.G. and believed she could successfully parent A.G. if given reunification services. For example, Georgia Moore, the social worker assigned to the A.G. matter, testified that she had prepared the April 13, 2010, jurisdiction/disposition report in which CFS had initially recommended that Mother not be offered reunification services. Moore had believed that Mother was not capable of completing services and becoming an appropriate parent. Mother had seemed to have no insight and appeared closed off. However, in the August 11, 2010, addendum report, Moore changed her recommendation. She testified that she had seen a change in her. Mother had attended domestic violence counseling and parenting classes and Mother had gained a great deal of insight into what had happened to M.G. and her relationship with Johnny. Moore further testified that Mother had demonstrated a willingness to take whatever class was available and was motivated to do whatever she could to improve herself.
Moore also testified that she had supervised at least 10 visits between Mother and A.G. Visits occurred twice weekly. A.G. was always very happy to see Mother. Mother played with A.G.-they sang together and Mother read books with A.G. Moore never had to direct or redirect Mother’s attention to focus on A.G. or to meet of A.G.’s needs. The relationship between A.G. and Mother was not typical. Mother never missed a visit. A.G. called Mother “mom” or “mommy.” Moore opined that Mother and A.G. were very bonded.
At the time of the hearing, A.G. was 18 months old and in foster care with nonrelated individuals. There were other infants in the foster care home and A.G. was doing well in the placement. A.G. was appropriately bonded to the foster parents, who are older and like grandparents. The current placement was not a concurrent home.
Timothy Seibert is a social worker with CFS. He monitored five visits between Mother and A.G., and his testimony was consistent with that of Moore regarding the bond between Mother and A.G.
Willem Vanderpauwert is a supervisor with CFS. He testified that he was initially opposed to reunification, but changed his mind. He stated that, when he saw Mother and A.G. interact during visits, the interaction was not forced; Mother was attentive to A.G. and A.G. responded to her. He believed it would take six months to a year for Mother and A.G. to reunify.
Vickie Marshall is a counselor at Christian Counseling. She testified that she had approximately 20 sessions with Mother since April 28, 2010, and that Mother was open and honest throughout the therapy. Mother was making progress on the goals of therapy-to address issues of grief and loss, for Mother to take responsibility for her actions, to understand the effects of her actions on her children, and to better understand domestic violence and gain assertiveness skills.
Dr. Heidi Knipe-Laird is a licensed clinical psychologist. She evaluated Mother for purposes of determining whether she could benefit from services. She found Mother very likely to benefit from services. Dr. Knipe-Laird testified that Mother suffered from posttraumatic stress disorder, which resulted from Mother being severely abused when she was a child. The disorder is treatable. When caring for M.G., Mother had exhibited symptoms of tunnel vision-M.G. showed signs of physical abuse in the forms of bruises and marks, yet Mother did not think that the abuse was possible. Dr. Knipe-Laird opined that, because Mother now realized that she had a problem with tunnel vision and had failed to recognize the signs of abuse, she could be helped by therapy. She also stated that Mother does not have any psychosis or other impairments that would prevent her from learning to parent A.G. Following reunification, Dr. Knipe-Laird recommended that Mother and A.G. be seen in a conjoint setting relative to mother/child interactions. In her opinion, it would be in A.G.’s best interest to reunify with Mother.
Mother testified that she had not responded appropriately to the abuse that Johnny had inflicted on M.G. Mother stated that she had learned in parenting class that she should listen more to her children about what is going on with them and not continue her previous attitude of “just deal with it” and “tough love, ” as had been her parents’ approach to her. In counseling, Mother was learning to put her children before partying, to hang around better people and to put her kids before any future romantic partner. Mother had also learned to recognize domestic violence and its effects on herself and her children. Mother testified that she and A.G. are bonded and that A.G. knows that she is M.G.’s mother. Finally, Mother testified that she was taking advantage of the family support available to her rather than isolating herself, and that she would be more careful in choosing future romantic partners and other friends because she would consider her children’s needs first.
At the conclusion of the hearing, the juvenile court stated that it “has had the opportunity to assess the testimonial quality and demeanor of all those that have testified here on this matter. In particular, [the c]ourt has had the opportunity to assess the testimonial quality of Mother, who is testified.” The court also pointed to the Forensic Consultation Report prepared by Dr. Young, especially the detailed drawing of M.G.’s numerous visible injuries, which, in the words of the court “indicated physical abuse was ongoing, ” as well as the description of the extensive trauma that M.G. suffered in her vaginal area.
The court ultimately denied reunification on the bases that Mother “caused the death of another child through abuse or neglect” and that “[A.G.] has been... adjudicated a dependent as a result of severe sexual abuse or severe physical harm to [M.G.]... and it would not benefit [A.G.] to pursue reunification services with Mother.” Mother was advised of her writ rights and subsequently filed this writ petition.
ANALYSIS
Mother contends the juvenile court abused its discretion when it declined to grant her reunification services for A.G. As discussed below, we conclude that the juvenile court did not abuse its discretion because the record contains substantial evidence to support the court’s ruling.
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 (Angelique C).) 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 Mother caused the death of M.G. and that M.G. suffered severe sexual abuse or severe physical harm.
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 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.
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). (Angelique C., supra, 113 Cal.App.4th at p. 523.) An appellate court may not disturb the court’s best interest determination absent a showing of an abuse of discretion. (Id. at pp. 523-524.) An abuse of discretion is shown when there is no substantial evidence to uphold the findings. (Ethan N., supra, 122 Cal.App.4th at pp. 64-65.)
The juvenile court did not specifically enumerate how it weighed each of the four Ethan N. criteria in view of the evidence presented. However, it is apparent from the court’s ruling that it both: 1) disbelieved Mother’s explanations that she did not recognize, or even see, the signs of abuse present on M.G.’s body and clothing and in her complaints of pain; and 2) viewed the evidence in the Forensic Consultation Report as indicating that Mother must have noticed more injuries on M.G.’s body than she admitted, either at first to Dr. Young or later to the social worker and the therapist. This goes to the first two Ethan N. criteria-first, the parent’s current efforts, fitness and history, and second, the gravity of the problem that led to the dependency. The trial court’s failure to specifically discuss the third and fourth factors may mean that it balanced so heavily the first two factors-Mother’s history of non-protection and the gravity of M.G.’s death despite the noticeable warning signs-that they far outweighed the third and fourth Ethan N. factors-the bond between A.G. and Mother and the fact that A.G. was not at that time in a concurrent planning home.
Even if one were to conclude that the trial court did not consider the Ethan N. criteria, which we do not, “[W]e review the lower court’s ruling, not its reasoning; we may affirm that ruling if it was correct on any ground. [Citations.]” (In re Natasha A. (1996) 42 Cal.App.4th 28, 38.)
The following evidence taken from the record on appeal is sufficient to support the juvenile court’s ruling against Mother’s claim that it abused its discretion. First, we review the evidence of sexual abuse and Mother’s changing story regarding how much she knew. Dr. Young notes on the very top of the page documenting the signs of sexual trauma: “On initial visual inspection-obvious bruising noted, ” and then sets forth the numerous individual injuries to M.G.’s genital area. When Dr. Young initially interviewed Mother regarding M.G.’s injuries, Mother did not mention that she had found blood on M.G.’s underpants. Mother only confirmed the incident after Dr. Young reported to her what Johnny had said. Further throwing doubt on Mother’s openness regarding her knowledge of sexual abuse to M.G., Mother later denied to the social worker that she had found any blood on M.G.’s underpants at all, but rather claimed that it was merely feces. Neither Mother nor Johnny mentioned this very key detail to Dr. Young the night she interviewed them. In her conversations with the social worker, Mother also altered her previous account of M.G.’s complaints that it hurt her to urinate. Mother told the social worker that M.G. had concluded on her own that the pain was caused by using strong soap. Dr. Young’s report does not contain this explanation.
The social worker spoke with Dr. Young on April 8, 2010, regarding the forensic exam. Dr. Young confirmed that Mother told her that she had found blood on M.G.’s underpants and had not stated that it could have been feces.
Second, we review the evidence as to the ongoing nature of the physical abuse and whether the signs were numerous and noticeable enough for Mother to have been aware of them, despite her claims that she had observed only a few specific marks on M.G. as late as the night before the fatal beating. Mother told Dr. Young that she had noticed only four marks on M.G. when she had bathed her the night before-one on her right shoulder and another on her right foot, plus a cut on M.G.’s chin and a scar on her upper back. This is another of Mother’s statements potentially minimizing her own responsibility that are at odds with other items of evidence. On March 19, 2010, two days after the incident, Johnny confessed to the investigating detective that he had abused M.G. over a period of time, and that this abuse had included pushing M.G., punching her in the stomach, and slamming her head “on various occasions.” Together with this confirmation by Johnny that the abuse took place over a period of time, the extensive amount of bruising on virtually every part of M.G.’s body that is described in detail in Dr. Young’s report is significant, reliable evidence that Mother knew that Johnny was badly abusing M.G.
We stress that the task of this appellate court is to determine whether the record, viewed as a whole, contains substantial evidence to support the juvenile court’s ruling. We do not determine whether the ruling is the only correct ruling, but whether, given the law and the evidence presented, it is a reasonable ruling. We acknowledge the evidence that Mother had made progress in recognizing her own shortcomings that contributed to M.G.’s tragic death. However, the juvenile court simply did not commit an abuse of discretion when, after reviewing and hearing all the evidence, including assessing Mother’s testimony, it chose to weigh more heavily the Ethan N. factors concerning M.G.’s death and Mother’s part in it against the progress Mother has made, the bond she and A.G. share, and the fact that A.G. was not in a concurrent planning home.
We do not second-guess the juvenile court’s findings relative to Mother’s credibility. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.)
DISPOSITION
The petition is denied. The stay previously imposed is lifted.
I concur: MILLER, J.
KING, J., Dissenting.
I disagree with the majority. Initially, I believe that the trial court failed to analyze the evidence based on all of the criteria set forth in In re Ethan N. (2004) 122 Cal.App.4th 55, 63-64 (Ethan N.) Secondly, there is not substantial evidence to support the trial court’s conclusion that the provision of reunification services would not be in the best interest of A.G.
ANALYSIS
A. The Statutory Scheme/Welfare and Institutions Code Section 361.5, Subdivisions (b)(4) and (c)
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
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. (Ethan N., supra, 122 Cal.App.4th at pp. 63-64; 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.
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 trial court’s best interest determination absent a showing of an abuse of discretion. (Id. at pp. 523-524.) An abuse of discretion is shown when there is no substantial evidence to uphold the findings. (Ethan N., supra, at pp. 64-65.)
B. Cases Applying the Best Interest Exception
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.)
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.” (Ethan N., supra, 122 Cal.App.4th at pp. 68-69, citing In re Alexis M. (1997) 54 Cal.App.4th 848, 853, fn. 5.) As noted however, “[t]he Legislature has, nevertheless, left open a ‘tiny crack’ to the parent who has been responsible for the death of his or her child.” (Ethan N., supra, at p. 65.)
Alexis M. involved a parent who had been an active participant in the sibling’s death. 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. (In re 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 In re Mardardo F. (2008) 164 Cal.App.4th 481also involved a parent who had raped and murdered a girl and at the time reunification was sought, was still considered a risk. 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.
EVIDENCE AT THE DISPOSITIONAL HEARING
In making its “best interest” determination, the juvenile court is to examine: (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.)
And, on appeal, “[t]he issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to all appeals. If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings.” (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.) “While it is commonly stated that our ‘power’ begins and ends with a determination that there is substantial evidence [citation], this does not mean we must blindly seize any evidence in support of the respondent in order to affirm the judgment. The Court of Appeal ‘was not created... merely to echo the determinations of the trial court. A decision supported by a mere scintilla of evidence need not be affirmed on review.’ [Citation.] ‘If the word “substantial” [is to mean] anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with “any” evidence. It must be reasonable..., credible, and of solid value....’ [Citation.] The ultimate determination is whether a reasonable trier of fact could have found for the respondent based on the whole record. [Citation.] While substantial evidence may consist of inferences, such inferences must be a ‘product of logic and reason’ and ‘must rest on the evidence’ [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations].” (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633, fns. omitted; see In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394.)
Submitted into evidence at the dispositional hearing was the April 13 jurisdictional and dispositional report, as well as an August 11, 2010, addendum report. Additionally, testimony from six witnesses was received.
A. The April 13 Jurisdictional and Dispositional Report
At the time of the preparation of the jurisdictional and dispositional report, A.G. was 13 months old. She was living with Mr. and Mrs. M.
By way of the report, evidence was submitted that Mother had never been married to A.G.’s father and his whereabouts were unknown. At the time of the death of A.G.’s sister, M.G., Mother was living with her then boyfriend Johnny. The report further set forth the following facts:
1. The Incident Which Gave Rise to A.G.’s Detention
On March 17, while Mother was at work, she received a telephone call from Johnny indicating that M.G. had fallen down and was not breathing. Upon returning home, Mother was unable to get a response from M.G. Mother and Johnny then took M.G. to the hospital.
Initially, Johnny concocted a story that M.G. had injured herself by some type of fall or mishap in a shed adjacent to the house. On the following day, during a polygraph examination, Johnny indicated that his previous story had been a lie. He stated that at the time of the incident, he got upset with M.G. because she did not properly fix some books in her bedroom. He initially struck M.G. in the abdomen with his hand and again told her to straighten up the books. After she was unable to do so, he placed both hands on her chest and pushed her backwards, with her head striking the bottom portion of a nightstand.
Upon assessment at Loma Linda University Medical Center, M.G. was noted to have “various red and purplish bruising and marks including but not limited to bruising and marks on her back, lower back, waist, feet, right shoulder front/back, elbows, arms, abdominal (left side), right ear and a laceration under her chin.” A CT scan noted two significant skull fractures. There was also “bruising on entire hymen, base of hymen bruised, blood in fossa and petechiae.” Dr. Amy Young opined that the bruising and marks on M.G.’s body appeared to be “fresh.”
2.Mother’s History
Mother’s parents separated when she was under the age of seven. Upon moving to California, she lived with her mother and siblings. After she and her siblings were taken by their father to San Diego, she was physically and sexually abused for the next two years. Upon being removed from her father by CFS in San Diego County, she and her siblings reunified with their mother and moved to Colton. When she was 16 years old she became pregnant with M.G. Upon breaking off the relationship with M.G.’s father in 2006, she smoked methamphetamine on a daily basis for about two to three months. Mother then moved to Texas to establish housing and employment. During this brief absence from California, M.G. lived with M.G.’s father. M.G. and Mother then lived in Texas for approximately a year and returned to California after M.G. said she missed her father. During this general time frame, she met A.G.’s father and became pregnant with A.G. While pregnant with A.G., Mother met Johnny. Initially, she and Johnny were just friends; however, after A.G. was born, the relationship with Johnny became closer. Johnny moved into her house in August 2009, approximately seven months before M.G.’s death. Mother worked over 40 hours per week and Johnny provided day care. At the time of M.G.’s death, and throughout the initial stages of the present proceeding, Mother was pregnant with a child of Johnny’s.
During their relationship, Mother and Johnny would at times argue and swear at each other. On one occasion, Johnny broke a window with his hand, and on another occasion he threw a DVD player at the wall. Mother was aware that he was taking anger management classes through the juvenile court and that he had been arrested for possession of a firearm. There was no domestic violence or aggression directed personally toward her and she was not aware of any aggression on Johnny’s part toward her children.
Mother has no criminal history.
3.Facts Giving Rise to Mother’s Awareness of Actual or Constructive Knowledge of Johnny’s Physical and/or Sexual Abuse of M.G.
At the time of her death, M.G. was five years old. During Johnny’s polygraph examination, he admitted to abusing M.G. over a period of time consisting of, but not limited to, pushing, punching her in the stomach, and slamming her head. After the incident in question, Mother indicated she was aware of a few bruises and marks on M.G., such as the laceration on her chin, but was uncertain of how M.G. sustained the various bruising and marks. Mother indicated she bathed M.G. on the night before the incident and didn’t notice any injuries except for the cut on her chin, bruise on her right shoulder, and a bruise on her foot. Mother also stated that often she would get a call at work from Johnny, who would indicate that M.G. had suffered an injury and he would explain how it happened.
Lastly, based on Mother’s history of sexual abuse as a child, she would ask M.G. if anyone was touching her and M.G. would say no. M.G. did report to her on one occasion that it hurt when she “peed”; M.G. followed it up by saying that the reason it hurt was because of soap. Mother indicated she had never mentioned anything to M.G. about soap. Also, about three months before M.G.’s death, there was a spot in M.G.’s underwear. Mother indicated it was toward the back of the underpants and that she “scratched it and smelled it.” Prior to M.G.’s death, a bone scan showed an “old skeletal fracture to the L-5 vertebra.”
B. Testimony Taken at the August 24 Jurisdictional and Dispositional Hearing
Georgia Moore is a social worker employed by the San Bernardino County Children and Family Services (CFS). She is assigned to the A.G. matter.
Moore prepared the April 13, 2010, jurisdictional report. The initial recommendation was not to offer reunification services to Mother. It seemed to Moore that Mother was not capable of completing services and doing what was necessary to be an appropriate parent. Mother seemed to have no insight. She appeared very closed off.
In her August 11, 2010, report, Moore changed her opinion and recommended offering services to Mother. She testified that she and other individuals who have worked with Mother have seen a change in her. Mother is insightful and has shown that she is capable of parenting. She has attended domestic violence counseling and parenting classes. Mother has indicated that she is learning a lot in the domestic violence classes and, while not previously recognizing that she was in an abusive relationship, she now recognizes it. As explained by Moore, in that Mother herself was the victim of abuse, she would convince herself that what was occurring in her life was not really abuse because it happened to her when she was a minor. Mother now understands that she was too dependent on Johnny and that it was not necessary; she now has a great deal of family support and realizes that she can do it herself. The importance of understanding that her relationship did involve domestic violence is that the chances of her repeating the same cycle are less. She realizes that if she had paid attention to some of the clues, the outcome with M.G. might have been different.
Moore further testified that Mother has demonstrated a willingness to take whatever class is available. She is motivated to do whatever she can to try and improve herself. Moore has seen parents that attend services and just go through the motions and do not gain anything; but Mother is different. She is not doing things because she is being asked to do them, she wants to do them because she wants to change.
Moore has supervised at least 10 visits between Mother and A.G. Visits occur twice a week. Additionally, Mother and A.G. have had a few supervised family visits on Saturdays. A.G. is always very happy to see Mother. Mother plays with A.G.-they sing together and Mother reads books with A.G. It appears that A.G. doesn’t want to be with anyone else and will not interact with anyone but Mother. Moore has never had to direct or redirect Mother’s attention to focus on A.G. or to meet the needs of A.G.; Mother has not needed her guidance, which is the case with most parents. The relationship between A.G. and Mother is not typical. Mother has been very dedicated and never missed a visit. Mother talks to A.G. about a new baby coming and about being a big sister. A.G. calls Mother “mom” or “mommy.” Mother has a bond with A.G. and A.G. is very bonded to Mother.
Moore believes it is in the best interest of A.G. to provide reunification services to Mother. Mother has the ability to parent. She believes Mother has insight which she did not show earlier. She is able to connect what she learns in the classes to what went on in the past and what is currently occurring in her life, with a realization that she does not make the same mistakes that she made in the past. Mother has demonstrated the capacity to benefit from reunification services. She has made more progress in four months than most parents do in six months or a year. Moore believes that if Mother continues with the progress she is making, there will be a successful reunification. She believes that if Mother were to get reunification services, it would take approximately six months to a year to return A.G. safely to Mother.
A.G. is presently 18 months old and is in foster care with nonrelated individuals. There are other infants in the foster care home and A.G. appears to be doing well in that placement. A.G. is appropriately bonded to the present caretakers, who are older and are like grandparents. The current placement is not a concurrent home.
At the time of the hearing, it was CFS’s recommendation that placement remain with the foster parents because the foster mother works well with Mother. Moore further indicated that at the time of the hearing, while A.G.’s aunt had expressed interest in placement, it was probably not in A.G.’s present best interest because the aunt had just married and had a child.
Timothy Seibert is a social worker with CFS. He monitored five visits between Mother and A.G. Mother’s visits were different than other visits he has observed over the years. She would bring toys to the visits and she and A.G. would always have lunch together. She was immediately involved, interactive, and had a calm demeanor. A.G. was always happy to see Mother and they interacted and played well. Mother demonstrated great parenting techniques as far as redirection when A.G. was mischievous. He witnessed a very strong bond from the beginning, different from other parents, who are nervous, erratic, and display poor parenting techniques. When the visits were over, the child cried in that she did not want to be separated from Mother; Mother encouraged A.G. to go with the foster mother.
Willem Vanderpauwert is a supervisor with CFS. He was initially opposed to reunification, but changed his mind. He agrees with the recommendation for family reunification. This is the first instance where they have changed their mind as it relates to a recommendation for reunification. When he saw Mother and A.G. interact, the interaction was not forced; Mother was attentive to A.G. and A.G. responded to her. He believes it would take six months to a year for reunification.
Vickie Marshall is a counselor at Christian Counseling. She has been working with Mother since April 28, 2010. Mother has had approximately 20 sessions, with each session being 50 minutes in length. Mother has been open and honest throughout the therapy. The goals of therapy are to address issues of grief and loss, for Mother to take responsibility for her actions, to understand the effects of her actions on her children, and to better understand domestic violence and gain assertiveness skills. Mother is making progress on the goals.
In this process, self-analysis is very important; in the absence of such, a person cannot change. Mother has made progress in this area. By way of her self-analysis, Mother has an understanding of how her past behaviors have affected what she is going through now. She has demonstrated the capacity to learn and modify her behavior and to make connections between her life and concepts from the classes. She is gaining insight on how her past affected her ability to protect her children. Mother has been making progress in terms of picking up on red flags as they relate to domestic violence and her relationship with Johnny. Based on the counseling, Mother is better equipped to make better choices when it comes to men. Mother has indicated that her children come first. Her safety plan as it relates to her children is that she is going to move in with her sister, who has room for her, and her sister and family would be there to help her in raising her children.
Marshall has not noticed any impairment that would make Mother unable to benefit from the services. Based on the sessions they have had, Mother has demonstrated her ability to be a good parent. She can be a good parent and adequately protect her child.
Dr. Heidi Knipe-Laird is a licensed clinical psychologist. She evaluated Mother for purposes of determining whether she could benefit from services. The evaluation was extensive and involved a clinical interview, a mental status examination, cognitive testing, personality assessment inventory, the parent/child relationship inventory, and extensive questioning. She has also reviewed letters from various providers, all of whom believe Mother is responding well. She found Mother very likely to benefit from services.
Mother has posttraumatic stress disorder, which is very treatable. In the past, Mother had exhibited symptoms of tunnel visioN.M.G. showed signs of having been physically abused in the forms of bruises and marks, yet Mother did not think that the abuse was possible and she did not see the signs.
The fact that Mother recognizes and realizes the problem is essential in that it serves as the foundation for the therapeutic process. Mother does not have any psychosis or other impairments that would prevent her from parenting. Six more months of therapy would definitely help Mother reach a point where she can safely parent. If there are indications six months from now that Mother poses a risk to A.G., that is a question that needs to be addressed then. Following reunification, she would recommend that Mother and A.G. be seen in a conjoint setting relative to mother/child interactions.
In her opinion, it would be in the best interest of A.G. to reunify with Mother.
The addendum report of August 11, 2010, while less inclusive in its scope, contains no facts which differ from the oral testimony. Attached to Moore’s addendum report is the 10-page report, with attachments, of Dr. Knipe-Laird, and letters and certificates from Again Program, Option House, Inc., and Christian Counseling Service.
In pertinent parts, Mother testified as follows:
“Q Do you think it’s a good thing that [CFS] became involved in your life?
“A Yes.
“Q Why?
“A Because now I know that I need help to get myself together to be able to provide my kids with a better life.
“Q Did [M.G.] sustain serious injuries and pass away while she was in your care and custody?
“A Yes.
“Q Is that partly your responsibility?
“A Yes.
“Q Do you agree with the social worker when she indicates that you should have responded differently, and there’s things you should have seen with regard to [M.G.]’s abuse?
“A Yes.
“Q Did you respond appropriately to the abuse that occurred to [M.G.]?
“A No, I didn’t. [¶]... [¶]
“Q And have you completed parenting?
“A Yes, I have.
“Q What did you learn in parenting?
“A In parenting I learned about discipline. I learned about handling stress. I learned things that are normal for kids and things that aren’t normal. I’ve learned a lot.
“Q Did you learn about modeling behavior?
“A Yes, I did.
“Q And communication with children and offering explanations and talking to them?
“A Yes.
“Q Have you thought about the ways you could apply the things you learned in parenting to your life?
“A Yes, I have.
“Q And what are some of the things you’ve thought about and ways you could apply the things you’ve learned to your life as a mother?
“A One of the things I think about the most is the communication. When I was young, I had no communication with my parents. It just didn’t matter what was going on with me. I took that on with my kids. I really showed a lot of tough love, and just deal with it. I think communication is really important. People think it’s important when you’re in a relationship. From what I’ve learned, it’s more important between you and your children to have that communication.
“Q So since taking parenting, do you communicate differently with [A.G.]?
“A Yes, I do.
“Q How so?
“A She cannot talk much, but I try to listen to what she’s saying. Even though I can’t understand what she’s saying, I try to understand her, and I just try to listen to her and listen to what she’s trying to get across. I also look at her body movements and her facial expressions to see what she’s trying to express. [¶]... [¶]
“Q What are your goals for counseling?
“A My goals for counseling-like I said, I do-I realize I do need help to deal with a lot of stuff that has happened to me in my life. In counseling, I want to get past that and change myself as a person, not only in making the right decisions in men or just decisions, period, but I feel I need to make a whole change in my life, which before I was pregnant I would drink and smoke cigarettes, and I think that would be a big change in my life that I don’t want, and also choosing the people that I hang around and things I do to have fun.
“Q Have you made changes in regard to the people you surround yourself with?
“A Yes.
“Q Why?
“A Because those people-those people that I used to hang out with, they drink. They smoke. They like to party. They don’t put their kids first. They’re worried about other stuff, and I don’t feel like those are the kinds of people I need influencing me and my life. [¶]... [¶]
“Q What [have you] learned about yourself in counseling?
“A I’ve also learned that I wasn’t the kind of parent I thought I was. I thought I was a good parent, but I see that there were some things that I did that were inappropriate as a parent.
“Q What is your plan with regard to future partners?
“A At this point, I don’t feel like I can have a partner in the future. I can’t say anything for later, but right now I feel like my kids-my kids deserve the best, and anybody in their life-it would be a privilege for anybody in their life, and I don’t feel there’s anybody worthy of that privilege right now. [¶]... [¶]
“Q Can you tell the Court a little bit about what you’ve learned in domestic violence?
“A I learned the red flags in men. I’ve learned the difference between addictive love and healthy love. I’ve also learned the cycle of abuse for domestic violence-the cycle of domestic violence, and I’ve learned about keeping my own self-esteem.
“Q Were you a victim of domestic violence?
“A Yes. [¶]... [¶]
“Q What were some of those signs?
“A He was very jealous, controlling. He was verbally abusive, and he didn’t express emotion too much.
“Q What have you learned in domestic violence that interplays with parenting and your being a mother?
“A I’ve learned how domestic violence affects children. [¶]... [¶]
“Q Do you have a plan about how to keep yourself from becoming a victim of domestic violence again?
“A Yes. I plan to be a little more careful in the people that I date. Like, with Johnny, I knew that he had gang violence on his record. I knew he had anger management problems, and I ignored those things. I think that’s one of the ways that I can keep myself from being out of one of those relationships is really knowing their background and paying attention to who they really are even if they don’t seem like they are that person.
“Q At this point in time, do you feel you’re in a place where you could start dating again, or you’re in a position to make decisions with regard to partners?
“A I feel like I could make decisions. I just don’t think that I want to date. [¶]... [¶]
“Q In the course that you’ve mentioned, have you touched on the theme about how your behavior impacts your children?
“A Yes.
“Q In which of your course work did that come up?
“A I would say all of them. I realize that your children watch everything that you do. So any decision, any job, anything you do, your kids are looking up to you, and they learn those ways. They pretty much follow in your footsteps. I asked [M.G.] what did she want to be when she grew up, and she said she wanted to work at Taco Bell like me. I didn’t like that answer, but I thought it was really cute that she wanted to be like me. So thinking back after learning that and thinking back to what [M.G.] said to me, that day I realize they really do. [¶]... [¶]
“Q How important is it for them to have healthy interactions with those around them?
“A It’s very important. If they don’t have those healthy interactions, they can be disoriented, or they don’t feel-how do you say? They don’t feel that the world is safe-I don’t know how to put it, but they don’t feel like the world is safe. They don’t feel like they can trust anyone. [¶]... [¶]
“Q Did [the video titled Ready to Learn] talk about why you should talk to and read to your baby?
“A Yes.
“Q Why is that?
“A When you talk and read to your baby, it’s not only that bond that you make with them, but it also compares them-helps their vocabulary. It helps them with the different-singing is the one that helps them learn the patterns of rhythms, but talking and reading helps the pattern of conversation when you speak to them and wait for them to answer back. And also-I said the bonding part; right? Even if it’s about five, ten minutes, you take that time, and it’s a bond with your child. And in that little time, you can have the communication-you can have the bonding-it’s more than one thing that comes out of reading and talking to your child. They learn more. You put words on their discoveries, or point to the pictures and name the pictures; they develop more with that. [¶]... [¶]
“A When I parented with [M.G.], I was really rough with her. I didn’t really think about how she was feeling when I yelled at her or when I spanked her. I just felt like I had to show a lot of tough love. I didn’t show too much affection to her. I told her I loved her, but I didn’t like to hug or kiss, and that was one of the things she did. She liked to hug me and kiss me all the time, and I just say, ‘[M.G.], stop.’ And I see now that that affection is important, and I have a lot of that with [A.G.] now. I like to hug her and kiss her, and her at the age she is, she doesn’t want to be hugged and kissed. She wants to be running around. I try to do that as much as possible. [¶]... [¶]
“Q What are those needs?
“A They are to feel respected, to feel important, accepted, to feel secure, and to feel included.
“Q How can you meet those needs in your children?
“A How can I meet them?
“Q Yes.
“A What do you mean? Like
“Q Like, during a visit with [A.G.], how do you make sure she feels respected and secure and included, all those things?
“A I try to use a lot of skills that I’ve learned from parenting and from the videos. I tried to-I don’t know how to put it. First, with respect, I talk to her, and I thank her, and I say ‘please.’ I talk to her in a way I would talk to someone else, another adult, so in that way, I respect her. To make her feel important, I listen to her. I talk to her. I take into consideration what she’s feeling when she’s throwing a tantrum. I used to get frustrated, but now I just-I hug her, and I just talk to her. I know that she’s mad, but I try to make her feel like I understand her. And I said respect and important, and to make her feel included, I’m there with her. If I go to the restroom, she’ll go with me. If we go throw the diapers, she’ll come with me. I even let her throw the diapers in the trash sometimes and praise her for that. [¶]... [¶]
“Q Do you think it’s your responsibility to be the best mother you can be?
“A Yes.
“Q I’m going to ask you a little bit about [A.G.] [¶] Do you love [A.G.]?
“A With all my heart.
“Q Does [A.G.] love you?
“A Yes.
“Q How do you know?
“A She shows me that she loves me. During the visit, she acknowledges that I’m there. In the beginning, when I first started visiting, I didn’t feel like she noticed I was there too much, and as we kept on with the visits, she showed me more and more of that relationship, and that bond that she wanted to be with me. She’ll go and get a toy, and she’ll bring it back to me. She involves me in her play. In the beginning, I didn’t feel like she was involving me when she was playing.
“Q Does [A.G.] turn to you for comfort and reassurance during your visits?
“A Yes.
“Q Do you believe that she knows you’re her mother?
“A Yes.
“Q Do you believe her knowing you’re her mother has any significance to her?
“A Yes.
“Q How so?
“A When I go to the visits, she doesn’t just look at me and see me there and walk by me. She knows I’m there. She’ll smile at me, and she’ll hug me. And if I get up to leave her, she’ll get up and follow me, and if she can’t, she will cry.
“Q What does she do when you first arrive for a visit?
“A She smiles and she walks to me. She tries to run. She can’t, though.
“Q What happens at the end of your visits?
“A Sometimes she cries for me. Sometimes she reaches for me when I hand her to her foster mom. Other times, she’s okay with leaving.
“Q What do you do during your visits with [A.G.]?
“A I try to do something different every visit. I take her toys. Every visit I do feed her in between the visit. I take her lunch, and I take books. I read to her. I sing to her, and I can’t get up and move around too much, but I try to dance with her. [¶]... [¶]
“Q What assurance can you give the Court that [A.G.] would eventually be safe and protected by you?
“A I’m going to have a lot more support in my life. Before I isolated myself a lot, and I was just in my own life. I felt like I had to do everything on my own. Now I feel I need to keep that support with me. I have that support from my sister and my brothers and my cousins. I stay closer to everybody with all the classes that I’ve taken, especially the domestic violence. I’ve learned that there are a lot of things to look out for in everybody, not just certain people, but there are things you have to look out for, and there’s stuff to realize, especially when you have kids.”
On this record, there is no substantial evidence to support the juvenile court’s denial of reunification. As such, the trial court abused its discretion.
C. Ethan N.’s Application to the Present Facts
Based on the above record, I believe Mother has met her burden and there is no substantial evidence to support the conclusion that reunification is not warranted. To hold otherwise, is, in essence, to deny the existence of that “tiny crack” created by the Legislature.
I look first to the juvenile court’s findings and then apply the present evidence to the criteria set forth in Ethan N.
The juvenile court stated:
“THE COURT: The Court has read and considered all of the reports received into evidence. Court has read and reviewed, as a matter of fact, all the cases reference[d] by counsel here today, and there are very fine prepared arguments in this case.
“Court has had the opportunity to assess the testimonial quality and demeanor of all those that have testified here on this matter. In particular, Court has had the opportunity to assess the testimonial quality of Mother, who [has] testified.
“Dr. Amy Young with the forensic team at Loma Linda University Medical Center reported that [M.G.] had various red and purplish bruising marks, including but not limited to, bruising marks on her back, low back, waist, feet, right shoulder, front, back elbows, arms, left side of the abdominal area, right ear, laceration under her chin. CT scan showed a fracture on the occipital bone of [M.G.]’s skull. Dr. Young found old skeletal fractures of the L-5 vertebra, which indicated physical abuse was ongoing.
“In addition, a vaginal examination was completed to show trauma, including but not limited to, bruising of the entire hymen and base of the hymen, blood in fossa and petechiae, and so tragically, [M.G.] was placed on life support until tests determined that she was brain dead, and she was taken off life support. She passed away on March 23rd, 2010.
“The medical reports that show the bruising this young child sustained and the beating she took was extensive. The diagram shows, not one or two areas, but literally all over her body of what she had to endure. After months of therapy that Mother had, she was asked on the stand how she would-she was asked-and these are her own words: ‘When I was parenting [M.G.], I was really rough with her. I didn’t really think about how she was feeling. When I yelled at her or when I spanked her, I just felt like I had to show a lot of tough love. I didn’t show too much affection to her. I told her I loved her, but I didn’t like to hug or kiss, and that was one one of the things she did.’
“And then after months of therapy, when asked what her plan was about to keep herself from becoming a victim of domestic violence, the first words out of her was, ‘Yes, I have a plan. I plan to be a little more careful in the people that I date.’ [¶]... [¶]
“Reunification services need not be provided to Mother in that there is clear and convincing evidence that the mother of [A.G.] has caused the death of another child through abuse or neglect. Additionally, [A.G.] has been adjudged-or rather adjudicated a dependent... as a result of severe sexual abuse or severe physical harm to [M.G.], a sibling or half-sibling, or by act or omission of [A.G.], and it would not benefit [A.G.] to pursue reunification services with Mother.”
As directed by Ethan N., in making its “best interest” determination, the juvenile court is to examine: (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.)
Without reiterating all of the testimony, there was little to no evidence to suggest anything other than that Mother’s efforts and fitness to reunify are excellent. The evidence was clear that she was attending all of her classes and she was grasping and applying the concepts learned. The testimony from all of the witnesses demonstrated that she understood the issues that led to the death of M.G. and was able to rectify them through the making of better choices and the solicitation of family support. In apparently addressing this first issue, the juvenile court cites to one bit of Mother’s testimony in which “after months of classes” Mother testified that she plans “‘to be a little more careful in the people that [she] date[s].’” Based on the phrasing of this comment, it is evident that the court placed little to no credibility in Mother’s testimony and that it viewed her response as being in some manner dismissive. In context, Mother’s testimony was:
“Q Do you have a plan about how to keep yourself from becoming a victim of domestic violence again?
“A Yes. I plan to be a little more careful in the people that I date. Like, with Johnny, I knew that he had gang violence on his record. I knew he had anger management problems, and I ignored those things. I think that’s one of the ways that I can keep myself from being out of one of those relationships is really knowing their background and paying attention to who they really are even if they don’t seem like they are that person.”
“Q At this point in time, do you feel you’re in a place where you could start dating again, or you’re in a position to make decisions with regard to partners?
“A I feel like I could make decisions. I just don’t think that I want to date.”
And earlier on in Mother’s testimony:
“Q What is your plan with regard to future partners?
“A At this point, I don’t feel like I can have a partner in the future. I can’t say anything for later, but right now I feel like my kids-my kids deserve the best, and anybody in their life-it would be a privilege for anybody in their life, and I don’t feel there’s anybody worthy of that privilege right now. [¶]... [¶]
“A I learned the red flags in men. I’ve learned the difference between addictive love and healthy love. I’ve also learned the cycle of abuse for domestic violence-the cycle of domestic violence, and I’ve learned about keeping my own self-esteem.”
While I see nothing dismissive or lacking in credibility from the above testimony, we nonetheless do not evaluate the demeanor of the witness nor pass on the juvenile court’s findings relative to credibility. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.) Nonetheless, and even assuming Mother’s testimony was totally lacking in credibility, there still must be substantial evidence to support an implied finding that Mother’s current efforts and fitness to reunify is lacking. On our record, there is none. The record shows that she understood the issues relative to her choice in men, the role it played in M.G.’s death, and the fact that it was not going to occur again. And lastly, Mother has no criminal history or involvement with child protective services.
The trial court also commented on Mother’s testimony as it relates to “tough love.” Placed in proper context, her testimony shows a great deal of growth on the part of Mother and insight into some of the issues that led to A.G.’s dependency.
The gravity of the problem that led to dependency was the death of M.G. Here, Mother was not the direct perpetrator. The juvenile court in its findings relied on the medical records of Dr. Young and an attached diagram depicting numerous injuries to M.G.’s body. And, while the record clearly demonstrates that M.G. was badly beaten, the juvenile court portrays the evidence as if it should have been clearly obvious to Mother that significant injury was being leveled on M.G. for a substantial period of time. We do not believe the record supports this. Even if I totally discount Mother’s description that prior to the beating she only observed a cut on M.G.’s chin and a bruise on her right shoulder and one on her foot, there are no facts to support a conclusion that the numerous bruises were long-standing. As the evidence indicates, “[u]pon further assessment at [Loma Linda University Medical Center] it was discovered that [M.G.] had various red and purplish bruising and marks including but not limited to bruising and marks on her back, lower back, waist, feet, right shoulder front/back, elbows, arms, abdominal (left side), right ear and a laceration under her chin.... According to Dr. Young[, ] [M.G.]’s injur[ies] are not consistent with a single fall and that the bruising and marks appear fresh.” (Italics added.)
The court references an “old L-5 fracture.” While it may be indicative of physical abuse, it is not an injury that would be readily observable by Mother.
I do note that while the record does not support a conclusion that Mother knew or should have known of ongoing physical abuse, there may well be substantial evidence that M.G. was the victim of sexual abuse, and that Mother arguably should have realized this. (M.G.’s description of her reaction when soap contacted her genital area and Mother’s observation of what may have been some blood in M.G.’s underpants.)
The last two considerations of Ethan N., those being the strength of relative bonds and the child’s need for stability and continuity, were not expressly addressed by the juvenile court.
Here, the evidence is again uncontroverted. Moore testified that A.G. is always very happy to see Mother. It appears that A.G. doesn’t want to be with anyone else and will not interact with anyone but Mother. Moore has never had to direct or redirect Mother’s attention to focus on A.G. or to meet the needs of A.G. The relationship between A.G. and Mother is not typical. Mother has been very dedicated and never missed a visit. Mother talks to A.G. about a new baby coming and about being a big sister. A.G. calls Mother “mom” or “mommy.” Mother has a bond with A.G. and A.G. is very bonded to Mother. She believes it is in the best interest of A.G. to provide reunification services to Mother. Mother has the ability to parent. Seibert testified that Mother’s visits were different than other visits he has observed over the years. She was immediately involved, interactive, and had a calm demeanor. A.G. was always happy to see Mother and they interacted and played well. Mother demonstrated great parenting techniques as far as redirection when A.G. was mischievous. He witnessed a very strong bond from the beginning. When the visits were over, A.G. cried in that she did not want to be separated from Mother. Vanderpauwert indicated that when he saw Mother and A.G. interact, the interaction was not forced; Mother was attentive to A.G. and A.G. responded to her. Marshall indicated that Mother has shown that her children come first. She can be a good parent and adequately protect her child. Dr. Knipe-Laird testified that in her opinion it would be in the best interest of A.G. to reunify with Mother.
Lastly, A.G. presently lives with Mr. and Mrs. M. Although A.G. is appropriately bonded with them, they are not being considered for permanent placement.
There simply is no evidence to support a conclusion that the bond between Mother and A.G. is anything but strong, and that A.G.’s need for stability and continuity will not be promoted by extending reunification services.
The evidence of reunification being in the best interest of A.G. is, in essence, uncontroverted.
D. Conclusion
In view of the whole record, substantial evidence does not support the juvenile court’s denial of reunification services. “The Legislature has... left open a “tiny crack’ to the parent who has been responsible for the death of his or her child.” (Ethan N., supra, 122 Cal.App.4th at p. 65.) Further, “[a]ssuming, without deciding, that the factor of another child’s death should not be weighed twice-first in connection with the section 361.5, subdivision (b)(4) finding and again in determining best interest-we must remember that, here, the previous death of another child is 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.” (Id. at pp. 66-67, fn. omitted.)
While I do not indicate that in all instances the death of another child cannot be factored into a determination of best interest, when initially used to support a subdivision (b)(4) finding, we do believe all of the Ethan N. factors must be considered in determining the best interest of the dependent. The present record does not reflect that the juvenile court considered the totality of the circumstances.
The only clear facts which can be cited to support the trial court’s denial of services is that M.G. was sexually molested and died while in the care and custody of Mother. That Mother knew or should have known of prior physical abuse or of sexual abuse is problematic on this record. Unlike Ethan N., In re Alexis M. and In re Mardardo F., Mother is neither a direct perpetrator nor has she shown any involvement in the criminal or dependency system. The testimony of all witnesses demonstrated an individual who has made substantial strides toward a successful reunification. When considering the whole record in light of the Ethan N. criteria, there is no substantial evidence to support the trial court’s denial of services.