Opinion
F076517
02-02-2018
L.S., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.
L.S., in pro. per., for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CEJ300003-2)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Brian M. Arax, Judge. L.S., in pro. per., for Petitioner. No appearance for Respondent. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Real Party in Interest.
Before Levy, Acting P.J., Gomes, J. and Peña, J.
-ooOoo-
L.S. (mother), in propria persona, seeks an extraordinary writ from the juvenile court's orders denying her reunification services as to her now two-year-old daughter, Myla S., and setting a Welfare and Institutions Code section 366.26 hearing. The court denied mother reunification services under section 361.5, subdivision (b)(4), after finding she caused the death of her son, M.O., through neglect. Mother seeks an order granting her custody of Myla or reunification services. We deny the petition.
Statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL BACKGROUND
On June 7, 2017, the Fresno County Department of Social Services (department) received information that B.O., mother's boyfriend and Myla's father (father), was living with mother and Myla. The department was concerned because mother and father's 23-day-old son, M.O., died in January 2015 of an unexplained head injury while in their care. In addition, a restraining order mother obtained to protect herself from father expired on June 2, 2017, and postings on his Facebook page suggested they were romantically involved as recently as May 2017. Father had an open child welfare case in Madera County involving his minor son who was removed from the birth mother. Father was not the offending parent but was not offered reunification services. Mother lost custody of her son, J.G., after M.O. died. J.G. was placed with his father, and mother had not seen him since.
On January 5, 2015, paramedics responded to a call at mother's residence of a non-breathing infant. They found then 18-day-old M.O. unresponsive with no palpable pulse and father leaning over him performing cardiopulmonary resuscitation. M.O. was transported to the hospital, placed on life support and admitted for subarachnoid hemorrhages, cerebral edema, unresponsiveness, status post cardiac arrest and concern for non-accidental trauma. Ophthalmological and neurosurgical consults were obtained, revealing bilateral multiple multilayered retinal hemorrhages and irreversible brain damage. M.O. was declared brain dead five days later and removed from the ventilator.
According to the parents, mother was breast-feeding M.O. and then left to clean another home, leaving M.O. with father. Father swaddled M.O., laid him down and went to use the restroom. When he returned, he noticed some vomit on M.O.'s blanket and, as he was cleaning it, he noticed M.O. was not breathing. Neither parent had an explanation for the diffuse bleeding in M.O.'s brain. However, they said he was healthy until January 3, 2015, when he became lethargic and they had to awaken him to feed him. He seemed pale and occasionally gasped for air. He also had a history of spitting up after feeding. They took him to the doctor earlier in the day on January 5th for a weight check and, according to the doctor, he gained weight. They told the doctor M.O. was acting differently and was still vomiting. The doctor told them to burp him more. At approximately 4:00 p.m., that day, father found him unresponsive and not breathing.
Dr. Rita Ongjoco, M.O.'s attending physician, believed M.O.'s injury was more than likely caused by trauma related to "shaken baby." Dr. Harry Kallas, M.O.'s attending physician at the time of his death, opined that M.O. suffered a profound neurologic injury caused by non-accidental trauma. Dr. Phillip Hyden, child advocacy consultant, concurred M.O.'s injury was non-accidental, given the significant amount of brain hemorrhaging and multiple layers of retinal hemorrhaging. Dr. Hyden opined M.O. was injured within several days preceding his admission to the hospital but could not provide a more precise estimate.
Homicide detectives interviewed the parents separately and they denied assaulting or shaking M.O. Father wondered whether M.O. was injured while sleeping with them in the bed or while in his car seat as they backed out of the driveway. He explained that they did not have a neck pillow to support his head and their driveway was narrow. As they backed out of the driveway, the truck "kind of kicks." He never saw M.O. hit his head as they backed out but he cried on one occasion.
On January 12, 2015, Dr. Venu Gopal performed the autopsy. He determined that the cause of death was head injury due to blunt impact but could not determine the manner of death. He commented it could be a case of shaken infant syndrome, however, microscopic findings of the brain suggested possible birth trauma, which he could not rule out. He also mentioned the possibility that M.O. was injured in the parents' truck stating, "There [was] another separate incident of possible blunt trauma when the [p]ick-up truck was backed up to the curb with the baby in the car seat."
On February 19, 2015, the Pediatric Death Review Committee reviewed M.O.'s case. Dr. Gopal stated he could not disclose much information because M.O.'s was a case of shaken infant syndrome and was being investigated as a homicide. However, no criminal charges were filed and a dependency petition filed on behalf of M.O. was dismissed after he died.
In May 2015, mother obtained a domestic violence restraining order to protect her and then five-year-old J.G. from father's violent and aggressive behavior. In her application, she described an incident in March 2015 when he became angry and "snapped" when she told him she wanted to break up. She was driving the car and he pulled the steering wheel, causing her to lose control and crash into someone's living room. She agreed, at father's request, to lie to the police and say they swerved to miss a cat. They continued to live together after the incident, even though she insisted she wanted him to leave. He finally left, but not before persisting in his aggression and saying, she was "going to make [him] do something stupid." She also recounted an incident in November 2014, while she was eight months pregnant with M.O., when father threatened her with a knife and in December 2014 when he threw a DVD case at the wall near where she was seated, holding newborn M.O.
On June 7, 2017, police officers performed a welfare check on then 17-month-old Myla. Father answered the door and said he was living there and he and mother were in a relationship. Mother was wearing a diamond ring on her left ring finger and said she and father were engaged. They resumed communication in January or February of 2017 and mother wanted Myla to have a relationship with him. She believed he had changed and would not be verbally abusive to her and she did not have any concerns about leaving Myla in his care. The officers placed a protective hold on Myla and a social worker removed her from her parents and placed her in foster care.
The department filed a dependency petition, alleging the circumstances of M.O.'s death placed Myla at a substantial risk of harm and supported juvenile court jurisdiction under section 300, subdivisions (a) (serious physical harm), (b)(1) (failure to protect), (f) (parent caused the death of another child through abuse or neglect) and (j) (abuse of sibling).
The juvenile court detained Myla pursuant to the petition and ordered the department to offer the parents random drug testing and arrange reasonable supervised visitation.
On June 29, 2017, social worker Christian Garcia-Cebreros visited the parents at their home to discuss the allegations. Mother said she had a difficult pregnancy with M.O. and almost lost him. He was identified as "fragile and [weak]." She had never seen father physically violent with children or adults even though he was verbally abusive to her. She and father were no longer together and she did not intend to resume their relationship. She informed Garcia-Cebreros she was regularly visiting Myla and taking classes in parenting and trauma.
The department recommended the juvenile court sustain the petition and deny the parents reunification services under section 361.5, subdivision (b)(4) and (6)(A).
Section 361.5, subdivision (b)(6)(A) applies, as relevant here, when a child sustains deliberate and serious injury by an act or omission of a parent and it would not benefit the child to pursue reunification services with the offending parent. --------
On October 2, 2017, the department filed a first amended petition, which corrected M.O.'s birthdate and modified the section 300, subdivision (j) count as to mother to allege she directly caused M.O.'s death, not because she failed to protect him from father as previously alleged, but because he sustained non-accidental injuries while in her care and custody.
Mother confirmed the matter for trial and on October 30, 2017, the juvenile court heard testimony from social worker Garcia-Cebreros, social worker supervisor Cheryl O'Connor and mother.
Garcia-Cebreros testified she personally supervised two visits between mother and Myla in June 2017. Mother was nurturing and appropriate. As to whether she observed bonding between them, she stated she "observed a relationship between mother and child." She could not characterize their relationship as weak or strong because she only supervised two one-hour visits. She would not change her recommendation to deny mother reunification services if mother completed classes in parenting and domestic violence and obtained a restraining order against father.
Mother testified she missed two of 40 scheduled visits. Even after she was informed the department was not recommending reunification services, she continued to attend parenting classes and visit Myla and enrolled in a domestic violence program because she loves Myla and wanted to do everything she could to regain custody of her. She was confused about the cause of M.O.'s death because she was given different explanations. Initially, the doctor consoled her and father and told them not to blame themselves for M.O.'s death because he was already sick. She was subsequently told M.O. suffered shaken infant syndrome and blunt impact abuse. She did not believe father harmed M.O. because she never saw him physically abuse or hurt the children and he never hurt her. Nor did she believe M.O. died of non-accidental trauma based on her difficult pregnancy and her research on shaken infant syndrome.
The juvenile court found all the jurisdictional counts true as alleged, denied father reunification services under section 361.5, subdivision (b)(4) and (6)(A) and mother under subdivision (b)(4). The court also set the matter for a section 366.26 hearing to implement a permanent plan.
In ruling, the juvenile court found mother "flat out not credible," referring to her denial when asked by her attorney if she violated the restraining order by having contact with father and her recantation on cross-examination. The court also stated it did not find mother to be a "particularly fit parent" because she lied and had a pattern of engaging in domestic violence with men, father in particular, and returning to them. The court stated,
"Stunning in the Court's judgment that we should have November and December events. The death of her child with this man as custodian in January and then she remains with him until he swerves off the road and then only applies two months later for temporary restraining order and then gets back together with him again including wearing his engagement ring. And that's part of the parents['] history."
DISCUSSION
Mother does not challenge the juvenile court's order denying her reunification services. Rather, she refutes evidence father physically abused her, contending the abuse was emotional only. She points out she was Myla's sole provider from birth and they were closely bonded and asserts that Myla's emotional well-being has deteriorated since she was removed from her custody.
Under section 361.5, subdivision (b)(4), the juvenile court may deny a parent reunification services if it finds by clear and convincing evidence the parent caused the death of another child through abuse or neglect. Mother does not challenge the applicability of the statute to her. Consequently, the only issue is whether the juvenile court was, nevertheless, compelled to provide mother reunification services because reunification served Myla's best interest. (§ 361.5, subd. (c)(2).) To the extent mother's claim Myla is deteriorating emotionally is an attempt to raise the issue of best interest, it fails. The juvenile court determined that reunification was not in Myla's best interest, given mother's history of maintaining and even rekindling domestically violent relationships. In reaching its decision, the court considered various factors, including evidence mother highlights in her petition, i.e., her nurturance and strong bond with Myla.
We find no error.
DISPOSITION
The petition for extraordinary writ is denied. This court's opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.