Opinion
G044891
08-31-2011
In re R.N., et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. S.N., et al., Defendants and Appellants.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Appellant S.N. Nicole Williams, under appointment by the Court of Appeal, for Appellant A.T. Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsels, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. DP017508, DP018059)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Jane L. Shade, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Appellant S.N.
Nicole Williams, under appointment by the Court of Appeal, for Appellant A.T.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsels, for Plaintiff and Respondent.
Appellant S.N. (mother) appeals from an order sustaining a supplemental dependency petition as to her two youngest sons and placing them in the custody of appellant A.T. (father). She contends insufficient evidence showed that she had physically abused her oldest son, or that her youngest two sons were at risk of abuse.
But substantial evidence shows mother physically abused her oldest son. (See S.N. v. Superior Court (June 21, 2011, G044866) [nonpub. opn.] [denying writ petition challenging order removing mother's oldest two sons from her custody and setting a hearing to select and implement a permanent plan for them].) Similarly, the record sufficiently shows mother's relapse into physical abuse posed a substantial danger to her two youngest sons. And mother had exhausted her reunification services.
Father also appeals, contending the court abused its discretion by ordering him to complete a batterer's treatment program. But the court reasonably did so to address father's history of anger and physical violence. We affirm.
FACTS
Mother has four sons: F.N., now age 12; J.N., now age 5; R.N., now age 4; and Al.T., now age 2. Father is the presumed father of R.N. and Al.T. F.N. and J.N. share an alleged father.
The court declared the four boys dependents of the court and removed them from parental custody in March 2009, after mother and father pleaded no contest to an amended dependency petition. They stipulated J.N. had suffered "significant" head injuries, broken ribs, a possible liver laceration, and extensive bruising on the face while in their care. These injuries indicated child abuse. Mother and father could not plausibly explain the injuries, and failed to seek medical treatment for J.N. for over a week. Father was arrested for child abuse. Moreover, mother and father had an unresolved history of domestic violence. The court found J.N. had suffered severe physical abuse. (See Welf. & Inst. Code, § 300, subd. (e).) It further found all of the children were at substantial risk of serious physical harm (§ 300, subd. (a)), and mother and father had failed to protect them (§ 300, subd. (b)).
The emergency room physician who treated J.N. described the rib fractures as "'the gold standard for child abuse, no doubt about it.'"
All further statutory references are to the Welfare and Institutions Code.
Al.T. was born after the initial petition and given a separate case number.
The court ordered reunification services for mother. Mother was offered individual counseling, joint counseling with father, parent education, and a personal empowerment program. Mother also received twice-weekly, two-hour monitored visits with the children. Visitation was liberalized, and mother successfully completed a 60-day trial visit with all four children.
Mother substantially complied with her case plan. The court returned the children to her custody under family maintenance supervision in November 2009. Mother's case plan barred her from physically abusing the children or using physical punishment. Mother complied moderately with her case plan. A therapist reported "mother is cooperative, was taking good care of the children, and the children are well cared for when [she] brought the children in during therapy sessions."
The children were taken back into protective custody and a supplemental petition (§ 387) was filed in May 2010. It alleged mother hit F.N. in the face (§ 300, subds. (a), (b), (e)), and placed the other children at risk of suffering similar abuse (§ 300, subds. (a), (b)).
According to the detention report, F.N. — a special education student — showed up to school with a dark purple bruise, one and one-half inches in diameter, on the left side of his face. F.N. told his teacher and the school nurse that mother had hit him the previous night. He also told the teacher that mother had "'hurt'" him; he "made a choking gesture with his hand to the side of his face." The teacher noted F.N. "came to school crying and hysterical" the week before, telling her that mother had "told him to run into the street and get hit by a car because she wished he was dead." F.N. told a social worker who came to school to interview him, "'my mom smacked me.'" He demonstrated how mother hit him on the face with an open hand. F.N. stated mother disciplines him by hitting him on the face and head, which she has done "many times." J.N. confirmed to the social worker that mother hit and "'choked'" F.N. the night before, giving him a bloody nose. J.N. stated mother was angry with F.N. because he had woken up the other boys.
The court detained the children in June 2010, granting further reunification services and visitation to mother. A social worker referred mother to a child abuser's treatment program and counseling. Mother also received information on "parent education providers, housing resources, Family Resource Centers, counseling services, [and] domestic violence counseling providers." Mother began attending a 52-week child abuser's treatment program and a 24-week parenting education class.
Meanwhile, a social worker interviewed F.N., J.N., and mother. F.N. told the social worker, "'This is ridiculous.'" He pointed to his cheek and stated, "'It's all gone. You can't see anything anymore.'" He then stated, "'I don't know what happened to my face,'" and when asked to tell the truth, he stated, "'You want to know what's the truth? Here is the truth. I want to go back with my mom. If you don't let me back to her, I won't tell you the truth.'" F.N. told the social worker to "'get out.'" J.N. similarly told the social worker, "Get out. I'm not talking to you either.'" Mother stated F.N.'s bruise was from "'an accident'"; he must have hit his face as she pulled him from his bed into the bathroom for a time out. She lifted his chin to make eye contact with him, but never choked him. Mother explained F.N. makes false accusations when he is mad with her.
The court found the supplemental petition's allegations true at a jurisdictional hearing in January 2011. The court received photographs of F.N.'s bruised face and ear. The social worker testified about her interviews with F.N., J.N., and mother. F.N. testified father caused the bruises and bloody nose, but then revealed his grandparents had told him to blame father, and then denied they had told him what to say. F.N. stated mother "sometimes" disciplined him by hitting him, but then claimed mother "never" hit him. F.N. conceded he told school officials that mother had hit him, but asserted he did not remember being hit. Mother testified she "pulled [F.N.] out" of bed and "pulled him to the bathroom" after he had woken up his brothers. She opined F.N. must have hit his face on the door or dresser as he fought her. She denied hurting him.
At the bifurcated dispositional hearing, the court removed the children from mother's custody. It vested custody of F.N. and J.N. with social services, and set a hearing to select and implement a permanent plan for them. (See § 366.26.) The court awarded custody of R.N. and Al.T. to father, but ordered him to complete a 52-week batterer's treatment program and a 12-week anger management program.
DISCUSSION
"An order changing or modifying a previous order by removing a child from the physical custody of a parent . . . and directing placement in a foster home . . . shall be made only after noticed hearing upon a supplemental petition." (§ 387, subd. (a).) "The supplemental petition . . . shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child . . . ." (Id., subd. (b).)
"[A] hearing under section 387 must be bifurcated into (1) an adjudicatory hearing on the merits of the allegations in the petition and (2) a disposition hearing on the need for the removal of the child from his or her current level of placement." (In re Javier G. (2006) 137 Cal.App.4th 453, 460-461 (Javier G.); accord Cal. Rules of Court, rule 5.565(e)(1), (2).) At the adjudicatory hearing, "the court must make a finding that . . . : [¶] (A) The factual allegations are or are not true; and [¶] (B) The allegation that the previous disposition has not been effective is or is not true.'" (Cal. Rules of Court, rule 5.565(e)(1).)
"If, at the section 387 adjudication, the court finds the previous disposition was not effective in the protection or rehabilitation of the child, the court is required to hold a disposition hearing. [Citation.] If the proposed removal of the child is from a parent or guardian, the court must apply one of the applicable standards found in section 361, subdivision (c)." (Javier G., supra, 137 Cal.App.4th at p. 462.) One such standard is "a substantial danger to the physical health . . . or . . . emotional well-being" of the child if returned home, and the lack of reasonable means to protect the child without removal. (§ 361, subd. (c)(1).) In addition, at "a section 387 disposition hearing, the Agency has the burden of proof to show reasonable efforts were made to prevent or eliminate the need for removal." (Javier G., at p. 463.)
Sufficient Evidence Supports the Order Removing R.N. and Al.T. from Mother's Custody
Mother challenges the sufficiency of the evidence for both the adjudicatory and dispositional findings. First, she contends insufficient evidence supported the factual allegations of the petition. Second, she contends insufficient evidence showed R.N. and Al.T. faced a substantial danger if returned to her custody.
"On a challenge to an order removing a dependent child from his or her parent, we 'view the record in the light most favorable to the order and decide if the evidence is reasonable, credible and of solid value.' [Citation.] We draw all reasonable inferences from the evidence to support the findings and orders of the dependency court." (Javier G., supra, 137 Cal.App.4th at pp. 462-463.) "The substantial evidence standard is a difficult hurdle for an appellant or writ petitioner. 'If there is any substantial evidence, contradicted or uncontradicted, which will support the judgment, we must affirm.' [Citation.] A reviewing court is in no position to judge the credibility of witnesses or reweigh the evidence, and therefore must resolve all evidentiary conflicts in favor of the juvenile court's findings." (D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1128.) The record here supports the orders.
First, substantial evidence showed the petition's factual allegations were true. After being returned to mother's custody, F.N. showed up at school with a large, dark bruise on the side of his face. He told his teacher, the school nurse, and the social worker that mother caused the bruise by hitting him. He told the social worker mother had hit him "many times." J.N. confirmed to the social worker that mother, angry with F.N., hit him and choked him and gave him a bloody nose. At trial, F.N. conceded mother hits him "sometimes," before he recanted and claimed she "never" hits him. The court closely observed F.N. while he testified, noting F.N. rubbed his face and eyes when answering. It described F.N. as "obviously frightened" and "very nervous, very unsure."
The court reasonably could have credited F.N. and J.N.'s initial statements to school officials and the social worker that mother hit and choked F.N. It reasonably could have discounted F.N.'s and J.N.'s later refusal to confirm their statements to the social worker. It reasonably could have discredited F.N.'s trial testimony implicating father, which may have been coached. And it reasonably could have rejected mother's claims F.N. hurt himself by resisting her. We will not second-guess the court's credibility determination or reweigh the evidence. (See Javier G., supra, 137 Cal.App.4th at pp. 462-463; see also D.M. v. Superior Court, supra, 173 Cal.App.4th at p. 1128.) The credited evidence showed mother hit F.N. in anger hard enough to leave a large, dark bruise on his face — and hit him "many" other times. This sufficiently supported the petition's allegations and showed the prior disposition was ineffective at protecting the children from mother's physical abuse. (See § 387, subd. (b).)
Mother notes the maternal grandfather also hit F.N. in the face after F.N. got angry and pinched him. We reject any implication that F.N.'s behavior or special needs somehow justify hitting him.
Second, substantial evidence showed the children faced a substantial danger if returned to mother's custody, and no other reasonable means existed to protect them. (See § 361, subd. (c)(1).) A substantial risk existed that mother would resort to physical abuse to discipline R.N. and Al.T., just as she had with F.N. Before she relapsed into hitting F.N., mother had already undergone individual counseling, joint counseling with father, parent education, and a personal empowerment program — all to no avail.
Mother's history of relapse is important. It distinguishes cases like In re Jasmine G. (2000) 82 Cal.App.4th 282, where the abusive parents "had forsworn corporal punishment" (id. at p. 288) and the only evidence of risk was the social worker's unsubstantiated impressions of their character (id. at pp. 288-290). More instructive are cases like In re Cliffton B. (2000) 81 Cal.App.4th 415, which note that recent episodes of good behavior cannot always overshadow a history of relapse. (Id. at pp. 423-424 [discussing drug abuse].) And despite mother's protestations that she learned new strategies in her child abuser's treatment program, she never accepted responsibility for causing F.N.'s bruise and bloody nose. (See In re Jessica B. (1989) 207 Cal.App.3d 504, 517 [father's "failure to admit fault indicates that he is neither cooperating nor availing himself of the services provided"].)
Moreover, mother had received reasonable reunification services for longer than allowed by statute. Mother received services tailored to resolve her physical abuse problem, enjoyed increasingly liberalized visitation, and was restored custody with family maintenance supervision. After re-detention, she was offered the child abuser's treatment program and additional parent education. These services were "were reasonable under the circumstances." (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) And mother received services for nearly 28 months — from March 2009 to January 2011. This far exceeds the 18-month statutory maximum. (See § 361.5, subd. (a); see also In re A.C. (2008) 169 Cal.App.4th 636, 648 ["once the section 361.5 clock begins, it continues to run despite a placement of the child with a parent during the dependency"].) Nothing warrants further services.
The Court Permissibly Required Father to Enroll in a Batterer's Treatment Program
Finally, we turn to father's contention. He claims the court abused its discretion by ordering him to complete the 52-week batterer's treatment program. He notes the court returned custody of R.N. and Al.T. to him, recognizing his progress with his case plan. The social worker testified father was addressing his domestic violence problem in therapy, and while she recommended the 12-week anger management program, she did not recommend the 52-week batterer's treatment program.
"The court has broad discretion to determine what would best serve and protect the child's interest," and to craft a reunification plan accordingly. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) Reunification services "'"must be appropriate for each family and be based on the unique facts relating to that family."'" (Ibid)While the services must, at a minimum, be "designed to remedy the problems leading to the loss of custody" (id. at pp. 1006-1007), they may also address "other deficiencies that impede the parent's ability to reunify with [the] child," "even though [the] problem had not yet affected [the parent's] ability to care for [the child]." (Id. at p. 1008.) "We cannot reverse the court's determination in this regard absent a clear abuse of discretion." (Id. at p. 1006.)
Here, the court did not abuse its discretion by finding father's history of domestic violence warranted additional services. Father had an unresolved history of domestic violence with mother, including one act of physical violence. His criminal record included a conviction for carrying a concealed weapon. J.N. had been severely beaten while in father's care. During the initial reunification period, father made harassing phone calls to the foster parents. And he became angry repeatedly during visitations, yelling and causing the sheriff deputies to intervene. After mother regained custody, father broke into her home — while there, he pushed her. While father may have progressed far enough with his case plan to regain custody of R.N. and Al.T., the court reasonably could have found their reunification would be impeded without further treatment of father's tendency to resort to anger and physical violence.
DISPOSITION
The judgment is affirmed.
IKOLA, J. WE CONCUR: ARONSON, ACTING P. J. FYBEL, J.