Opinion
E033519.
7-10-2003
MERIDITH J., Petitioner, v. THE SUPERIOR COURT OF THE COUNTY OF SAN BERNARDINO, Respondent; DEPARTMENT OF CHILDRENS SERVICES, Real Party in Interest.
Friedman, Gebbie & Gardner and Beth L. Steigerwalt, for Petitioner. No appearance, for Respondent. Alan K. Marks, County Counsel, and Julie J. Surber, Deputy County Counsel, for Real Party in Interest.
1. Introduction
In this petition for extraordinary writ, Meridith J. (mother) seeks to set aside the juvenile courts order setting the Welfare and Institutions Code section 366.26 hearing. The juvenile court denied mother reunification services under section 361.5, subdivision (b)(6), based on severe physical harm to her son and the risk of harm to her daughter. Mother argues that the juvenile court erred in failing to consider the relevant facts and make the necessary factual findings under section 361.5, subdivisions (h) and (i). Because the record shows that the juvenile court carefully considered the relevant facts and made the required findings, we reject mothers argument and deny her petition.
California Rules of Court, rule 39.1B.
All further statutory references will be to the Welfare and Institutions Code unless otherwise stated.
2. Factual and Procedural History
In October of 2002, after receiving allegations of physical abuse, the San Bernardino County Department of Childrens Services (DCS) made an unannounced visit to mothers home, where mother lived with her two children, Christopher Y., age 10 and Kyla J., age 3, and Kylas father, Eric J. (father). During the visit, mother admitted that she and father used corporal punishment on the children with their hands or a belt. Mother admitted that, from a recent "whooping," Christopher had a raised linear scar about one-inch wide and three inches long on his left upper arm. After encountering some resistance from mother, DCS removed Christopher and Kyla from mothers custody.
Christopher had scars, welts, lacerations, and bruises on his legs, arms, back, and buttocks. Christopher later explained that father would force him to disrobe and lay on the floor as father beat him with a wet belt for about two to 10 minutes. Afterwards, father would tell Christopher to wash off any blood and then rub butter on his wounds.
Based on Christophers physical examination, the doctor concluded that Christopher was a victim of physical abuse and was repeatedly subjected to severe beatings. The doctor specifically concluded that Christopher suffered at least 26 separate blows during different periods of time.
The social workers investigation revealed that the family had several prior contacts with DCS involving allegations of neglect and sexual abuse. The investigation also showed that father had an extensive criminal history, including violent acts upon peace officers, forcible rape, and forcible lewd and lascivious acts upon a child under 14 years of age.
DCS filed section 300 petitions for both Christopher and Kyla. In the petitions, DCS included various allegations, including the following: mother and father subjected Christopher to corporal punishment leaving scars on his body; father struck Christopher repeatedly while mother was present and failed to protect him; mother and father subjected Christopher to cruelty by forcing him to disrobe and lay on the floor as one of them struck him repeatedly; and mother and father placed Kyla at substantial risk of suffering physical harm.
Section 300, subdivisions (a), (b), and (i).
At he detention hearing on October 11, 2002, the juvenile court found that parental custody was contrary to the childrens welfare. The court ordered DCS to develop a family reunification plan and provide services.
Later, in an addendum report to her jurisdictional/dispositional report, the social worker recommended against reunification services because the children were removed on the ground of severe physical harm.
On December 18, 2002, mother was arrested on charges related to Christophers injuries.
After at least three prior placements, Kyla now resides in the relative foster home of Marvin J. Because of Christophers behavioral problems, including attention deficit hyperactive disorder and sexual misconduct, he no longer lives with his sister and instead resides in a group home.
At the contested jurisdictional hearing on March 4, 2003, the juvenile court found both children to be dependent children of the court. The court also found true all the allegations of physical abuse. At the contested dispositional hearing, the court denied mother reunification services under section 361.5, subdivision (b)(6), and scheduled the selection and implementation hearing under section 366.26.
3. Discussion
In challenging the trial courts denial of reunification services, mother claims the trial court failed both to consider the factors set forth in section 361.5, subdivision (h), and to read into the record the basis for the finding of severe physical harm, as required in section 361.5, subdivision (i).
Section 361.5 explicitly directs the juvenile court to order services for the parents whenever a child is removed from parental custody. The statute, however, also provides limited exceptions. In allowing the court to deny services under one of these exceptions, the Legislature has determined that, in certain situations, reunification efforts would be useless and would not serve the childs best interest. The court has broad discretion in deciding what would serve the childs best interest and fashioning an appropriate dispositional order. Therefore, the courts decision will not be reversed absent a clear abuse of discretion.
Section 361.5, subdivision (a); In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.
Section 361.5, subdivision (b); In re Baby Boy H., supra, 63 Cal.App.4th at page 474.
In re Baby Boy H., supra, 63 Cal.App.4th at page 474; see also Karen S. v. Superior Court (1999) 69 Cal.App.4th 1006, 1010.
In re Baby Boy H., supra, 63 Cal.App.4th at page 474.
Section 361.5, subdivision (b)(6), provides that a parent is not entitled to reunification services if her child has been adjudicated a dependent under section 300 as a result of severe physical harm. The physical harm may have been inflicted on either the child or his sibling and may have been caused by the parents act or omission. Section 361.5, subdivision (b)(6), requires that the court make a factual finding that reunification services would not benefit the child.
See section 361.5, subdivision (b)(6); Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 751.
See section 361.5, subdivision (b)(6); Deborah S. v. Superior Court, supra, 43 Cal.App.4th at page 751.
The statute also provides specific requirements pertaining to this exception. Section 361.5, subdivision (i), requires the court to read into the record the basis for finding severe physical harm and the factual findings supporting the courts decision that reunification services would not benefit the child. Section 361.5, subdivision (h), sets forth six factors for the court to consider in making its determination as to whether services would benefit the child. The factors are: the specific act or omission; the circumstances under which the harm was inflicted; the severity of any emotional trauma; the history of abuse with other children; the likelihood of reunification; and the childs preference.
Section 361.5, subdivision (h)(1)-(6).
Mother claims the court failed to comply with these requirements. Under section 361.5, subdivision (h), the court must consider "any information it deems relevant." The language of this provision indicates that the Legislature intended the courts to exercise discretion in determining what information is relevant based on the particular facts of the case. While section 361.5, subdivision (h), provides a list of factors, the Legislature did not intend to impose a requirement that the court consider all six factors in every case. Furthermore, the Legislature did not require that the court make a record of its thought processes by discussing each factor. Generally, a court is presumed to have considered and applied the correct standards. According to the statute, the court need only specify those facts considered in determining that reunification services would not be beneficial.
In re Bernadette C. (1982) 127 Cal. App. 3d 618, 625, 179 Cal. Rptr. 688.
Section 361.5, subdivision (i).
In this case, the court held a separate dispositional hearing. The entire hearing was devoted to a determination of whether reunification services would be in the childs best interest. The court considered testimony from both mother and the social worker. The social worker testified that mother failed to acknowledge that her method of discipline amounted to child abuse. During her testimony, mother admitted that she had told the social worker that she and father used corporal punishment on the children by subjecting them to whippings with their hands or a belt. During cross-examination, DCS also questioned mother concerning her claim that she no longer had any contact with father, who was responsible for most of Christophers injuries. According to the social worker, child wanted to live with mother, but he had no desire to live with father. Previously, when asked whether he wanted to live with father, Christopher replied, ". . . not Eric because Eric is mean."
After hearing testimony, the court considered the arguments presented by counsel. Counsel for DCS noted that, at the jurisdictional hearing, the court made a finding that the children were declared dependent children of the court on the ground of severe physical abuse. DCS noted that Christopher had 26 scars on his body, some of which were inflicted by mother. DCS argued that, despite mothers voluntary participation in services, there has been no progress. In her defense, mother argued that she was not the primary offender, that she has been given little or no opportunity to correct her behavior, and that she would be able to provide Christopher with better care and attention than the care received in a group home. DCS again reminded the court that both mother and father were responsible for Christophers injuries. In briefly discussing the circumstances, DCS told the court that the child "was laid on the floor, stripped down, and beaten."
After the parties presented their arguments, the court stated: "Based upon the evidence presented here today, the Courts had an opportunity to listen to all arguments, and I do take very seriously the arguments that have been presented, however, I do find, based upon the recommendation, that it is sound according to the law. The Court is also concerned with the minor Christopher being in a group home. And that concern isnt minimized in the least by finding, based upon the arguments made here today, the Court will continue to be concerned, however, I do believe, not only based upon the Court, what the Court made the findings of at the jurisdictional hearing stage, that it is appropriate not to offer mother physical reunification services. I dont believe at this time, even if they were offered, that they would be beneficial to this minor at this time." The court then adopted the social workers findings. The court then went on to say, "I also take into consideration — I do note within that code section, its not only for the physical acts, but the failure to act on behalf of the mother with respect to the severe abuse that Christopher sustained."
We conclude that the courts statement satisfied the statutory requirements. Based on the evidence and arguments presented to the court, we can assume that the court properly considered the factors listed in section 361.5, subdivision (h). The court and the parties were fully aware that Christopher was subject to severe physical abuse, in the guise of discipline, and the circumstances of that abuse. In her reports, the social worker repeatedly emphasized the severity of the abuse and its effect on Christopher emotionally and psychologically. Immediately before the court made its ruling, counsel for DCS reiterated that Christopher had 26 scars that he would "carry for the rest of his life." The court also knew that, despite the severe physical abuse, Christopher still wanted to live with mother. The court, however, mentioned that efforts to reunify this family would not be beneficial to the child. Therefore, the record indicates the court considered all the relevant factors.
See In re Bernadette C., supra, 127 Cal. App. 3d at page 625; see also In re Fred J. (1979) 89 Cal. App. 3d 168, 175, 152 Cal. Rptr. 327.
There is no doubt as to the basis for the courts decision. The court stated that mother fell under section 361.5, subdivision (b)(6), based on her acts and omissions of severe physical abuse. The court also indicated that it was unlikely that the child would be returned into parental custody. Based on these two decisive factual findings, the court denied mother reunification services. As required under section 361.5, subdivision (i), the court provided an adequate record of both the basis for denying reunification services and the factual findings used to determine that services would not benefit the child.
See In re Rebekah R. (1994) 27 Cal.App.4th 1638, 1652.
In denying reunification services on the ground of severe physical harm, we conclude that the trial court satisfied the requirements of section 361.5, subdivisions (h) and (i).
4. Disposition
We deny mothers petition.
We concur: McKinster, Acting P. J., and King, J.