Opinion
E053573 Super.Ct.No. SWJ006058
10-31-2011
In re D.H., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. T.E. et al., Defendants and Respondents; D.H., Appellant.
Daniel G. Rooney under appointment by the Court of Appeal, for Appellant. Pamela J. Walls, County Counsel, Anna M. Deckert, Deputy County Counsel 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Michael J. Rushton, Judge. Affirmed.
Daniel G. Rooney under appointment by the Court of Appeal, for Appellant.
Pamela J. Walls, County Counsel, Anna M. Deckert, Deputy County Counsel for Plaintiff and Respondent.
Liana Serobian under appointment by the Court of Appeal, for Defendant and Respondent T.E.
No appearance for Defendant and Respondent J.H.
Appellant D.H. (minor) (born October 2010) came to the attention of Plaintiff and Respondent the Riverside Department of Public Social Services (the department) immediately upon her birth due to the previous involvement of Defendant and Respondent T.E. (mother) with the department. The juvenile court had previously terminated mother's parental rights with respect to her first child, A.H., on January 17, 2008. The juvenile court also earlier denied mother reunification services as to her second child, K.L. The department sought formal removal of minor and recommended that services not be offered to mother due to her failure to reunify with minor's siblings. The juvenile court removed minor from mother's custody, but granted her six months of reunification services. Minor appeals contending insufficient evidence supports the juvenile court's determination to offer mother reunification services. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
The department took temporary custody of minor the day after she was born due to allegations mother had failed to reunify with her prior children and mother had unresolved mental health issues. The department received its referral regarding A.H. on June 20, 2006, when it was discovered she had five to six bruises on her head and cheek that looked like finger prints, as if the child's face had been squeezed; she "'sustained a subdural hematoma in her occipital lobe, a healing bruise on the back of her head'"; she also had a broken leg. Her injuries were consistent with shaken baby syndrome. The juvenile court detained A.H. at the age of three months on allegations of physical and general neglect.
A.H.'s father, Alfonso, dissolved his relationship with mother on June 25, 2006, after refusing a polygraph test proffered by the Hemet Police Department. Alfonso, thereafter, absconded to Mexico. On June 16, 2006, mother pled guilty to willful harm or injury to a child (Pen. Code § 273a, subd. (a)). Mother was placed on probation, which was scheduled to end on February 26, 2011. As an apparent condition of her probation, the court ordered mother to complete a parenting course by March 1, 2008. Nevertheless, hearings on alleged violations of probation for mother's apparent failure to timely complete the program occurred on April 1, 23, and August 25, 2008; mother failed to appear at the first hearing. The court apparently revoked and reinstated mother's probation with a condition that she complete the parenting program; mother completed the course on October 23, 2009. The juvenile court offered mother reunification services as to A.H., but mother failed to reunify; the juvenile court terminated mother's parental rights with respect to A.H. on January 17, 2008.
Penal Code section 273 a, subdivision (a) provides, "Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years." We have nothing in this record to indicate the factual basis for mother's plea; thus, we have no definitive way of knowing whether mother was alleged to have inflicted the injuries or had otherwise permitted A.H. to be placed in a situation where such injuries could be inflicted. Nonetheless, the record is replete with mother's continued assertions that Alfonso was the perpetrator of the abuse against A.H.
On May 21, 2008, the department received an initial referral with regard to K.L.; his father, Wade, had left K.L., an infant, alone for 20 minutes. The department offered the parents voluntary services. The services were discontinued when mother and K.L. moved out of the county. The court granted mother's request for a temporary restraining order against Wade, but dismissed the order when mother failed to show for a scheduled hearing on March 19, 2009, to make the restraining order permanent.
The department received another referral as to K.L. on January 25, 2010, when he was brought to the hospital with bruises on his forehead. Mother said K.L. had been left in the care of minor's father, J.H. (father), who was mother's current boyfriend. The report initially reflected that K.L. had hit his head on the floor; mother and father reported that K.L. had walked into a door; father admitted tapping K.L. on the arm; the paramedics reported that father appeared to be under the influence of drugs. The juvenile court detained K.L. on January 28, 2010, and denied mother reunification services thereafter. A status review hearing as to K.L. was pending for November 2, 2010; the department had recommended that the juvenile court schedule the selection and implementation hearing within 120 days from that date.
Mother and Wade were apparently no longer together. The only child who to whom father is the biological father is minor. However, minor has not argued the grant of reunification services to father was erroneous; thus, father has not filed a respondent's brief.
The department took custody of minor after her birth. In the detention report filed October 14, 2010, the department alleged mother had been diagnosed with schizophrenia, bipolar disorder, and ADHD, but was not currently taking medication for any of her conditions; mother contended her lack of medication was due to her pregnancy. Mother reported having an appointment with a psychiatrist on November 3, 2010, in order to resume taking medication for her conditions; she denied being diagnosed with schizophrenia. Mother reported completion of a parenting class and nearing completion of an anger management class. On October 15, 2010, the juvenile court formally detained minor.
The department attached an incident report dated February 3, 2010, prepared by a Detective Salisbury regarding K.L.'s case, to its November 1, 2010, jurisdiction and disposition report. In it, the detective noted "on the medical opinion of [the] Forensic Pediatrician[, the social worker] was closing her CPS investigation [of the] case. [The social worker ] explained [the doctor] 'downgraded' [K.L.'s] injury and there were no physical findings consistent with abusive head trauma. [The social worker] was going to document the case as 'general neglect' . . . for not immediately calling 911." The detective concluded, "[b]ased on the totality of the circumstances, statements and medical information there is no reason to suspect . . . minor['s] injuries were the result of physical abuse or intentional neglect. Due to no further information, this case will be closed unfounded."
Minor contends we cannot consider the detective's report because the juvenile court had already made a determination K.L. had suffered serious physical abuse. However, the record does not include anything of any evidentiary value to substantiate a determination that the previous juvenile court found K.L. had suffered abuse. Minor's citation to the reporter's transcript does not support this contention. The record contains no minute orders or transcripts regarding the juvenile court's findings with regard to K.L. At the jurisdictional hearing, mother admitted the juvenile court had sustained an allegation that K.L. had "suffered serious physical harm including bruising and hematoma to the forehead and the mother ha[d] no reasonable explanation for the injury." However, this admission contrasts with minor's contention the court found physical abuse. Although the juvenile court took judicial notice of the previous court's findings as expressed in the minute orders with regard to the previous two children, none of those minute orders appear in this record. Moreover, we note father's counsel below expressed on the record that he had the files in the previous case but could not tell "what was found true, what was not found true at that particular time other than what the petition states."
On December 8, 2010, the juvenile court granted mother's request for hearing on her JV-180 petition for reunification services as to K.L. The juvenile court scheduled a combined JV-180 and contested jurisdictional and dispositional hearing for December 16, 2010. At the hearing, mother testified she had completed one anger management class and was currently in the ninth week of a second, 16-week anger management program. She completed a parenting class in June or July. Mother had been going to a mental health clinic where she was under the care of a psychiatrist who had prescribed medications for her condition, bipolar disorder; she had been on the medication since December 2, 2010. She completed a child batterer's program in October 2009, and a substance abuse program after her reunification services as to A.H. were terminated.Mother admitted on cross-examination that she had no documentation supporting completion of the services she testified to having completed. Mother admitted that A.H. had suffered "pretty severe injuries" included broken bones, which were consistent with Shaken Baby Syndrome. Mother denied inflicting injuries upon K.L.; she contended he injured himself when he fell against a doorknob.
The JV-180 petition itself is not included in the record.
It is unclear from the record whether this was the parenting class that was required as a condition of mother's probation. However, mother testified she had "taken a lot of parenting classes . . . and I learned a lot of new things that I didn't learn in my previous class." Mother testified she had taken previous parenting classes.
Though we do not have a copy of the juvenile dependency petition or any of the reports or minute orders from the proceedings with respect to A.H., it is apparent one of the allegations then pending against mother was that she used and/or abused controlled substances.
Though later questioning contradicted this testimony when mother agreed that the documentation attached to the JV-180 petition regarding the first anger management program mother completed, established it was an eight-hour online program.
The juvenile court determined that there had been no change in mother's circumstances and it would not be in K.L.'s interest to offer mother reunification services. Thus, the court denied mother's JV-180 petition. The court noted that any contention K.L.'s injuries were self inflicted "flies in the face of the evidence." The court then set the selection and implementation hearing as to K.L.
As to minor, the juvenile court incorporated the evidence adduced on the JV-180 hearing into the jurisdictional and dispositional hearing. The court struck the allegation that mother suffered from schizophrenia finding no evidentiary basis to support it. The juvenile court otherwise sustained the petition and found minor a dependent of the court. It continued the matter for a separate hearing on disposition. The court ordered several documents into evidence including: (1) a December 7, 2010, notification that mother had completed 12 hours in eight sessions of a 24-hour, 16-session anger management course run by Catholic Charities; (2) a notification from Catholic Charities dated December 7, 2010, that mother had completed five, one-hour joint therapy sessions with father occurring between October 19, 2010, and December 7, 2010; and later (3) a December 14, 2010, notification that mother had completed 13.5 hours in nine sessions of the aforementioned anger management course.
In an addendum report filed February 3, 2011, the department noted that mother had been diagnosed with bipolar disorder and began medical treatment on December 2, 2010. The social worker noted that mother "is nurturing and affectionate during her visits with [minor]. She holds and talks to her and displays appropriate interactions." The report later indicated mother had unresolved mental health issues, but reported an upcoming appointment with a psychiatrist on November 3, 2010. Later the report reflected that on January 4, 2011, the social worker reprimanded mother for having failed to inform her she was receiving mental health treatment. The social worker noted on January 31, 2011, that she informed mother she had still "not received any progress reports from any of her other services providers that she has been participating in . . . ."
The latter two aspects of the report are internally inconsistent with the portion that notes mother had been diagnosed with and treated for bipolar disorder at least as early as December 2, 2010, and externally inconsistent with mother's testimony at the jurisdictional hearing that she had been so treated. This makes it impossible to determine whether the department's recommendation that mother not receive reunification services as to minor was based, at least in part, on the erroneous assumption that mother had still failed to begin treatment of her mental health issues. This is especially true as this allegation was reiterated in a subsequent report. See post.
Attached to the report were two psychological evaluations of mother conducted in August 2007, with respect to the proceedings regarding A.H. In the first, the psychologist noted that mother had come to the attention of the department when A.H. was treated at a hospital for "a number of physical injuries believed to be the consequence of abuse including facial bruises, oxygen deprivation, a brain injury, fractured femurs[,] and fractured ribs." Mother admitted to the use and abuse of marijuana and methamphetamine. The psychologist observed that mother's "attempt to hide the nature/circumstances of injury to her child and her utter apparent failure to . . . affirmatively . . . protect her child are extremely troubling." He further expressed concern regarding mother's "unwillingness to protect her child and her lack of interest in the punishment of other wrongdoers." He concluded that mother's "resistance to gaining a clearer understanding of the circumstances, refusal to accept responsibility, lack of genuine remorse or even normal concern and refusal to seek assistance foreclose improvement and render it unlikely she could safely parent without extraordinary and regrettably, unexpected change."
The second psychologist noted that mother reported it was a good thing a neighbor had reported the abuse because otherwise she never would have realized that Alfonso was the source of the abuse; she would have continued to believe that A.H. was just banging her own head on the ground; . He concluded that mother's "presentation did not reflect any appreciable acceptance of the seriousness [of] the level of abuse of her daughter. Nor did her presentation reflect that she had any appreciable remorse or regret for what had happened, or that she felt any level of responsibility for the abuse of her daughter or that she did not intervene."
Mother reported that she left Alfonso due to his abuse of A.H.
The department filed another addendum report on March 3, 2011, in which it noted that "parents continue to visit with [minor] on Saturdays and Mondays for two hours each day. It is reported that the parents have been appropriate during the visits since the last Addendum dated February 9, 2011. There have been no issues or inappropriate behavior." The department again observed that mother "continues to have unaddressed mental health concerns and is in need of proper medication," and that she "has an appointment to seek psychiatric treatment on November 3, 2010 . . . ."
Attached to the report was a psychological evaluation of mother conducted by Dr. Edward Ryan dated April 6, 2010, apparently in regard to the proceedings related to K.L. Dr. Ryan noted that mother reported being diagnosed with schizophrenia and having a prior history of methamphetamine use and abuse. Alfonso had apparently returned from Mexico and was incarcerated for child abuse. Dr. Ryan observed that mother "[h]as been in denial regarding the severity of the abuse and is not accepting responsibility for what happened to [K.L]." Mother continued to assert that K.L.'s injuries were self-inflicted.
Dr. Ryan noted that mother "tends to avoid solving problems by 'looking the other way' so to speak, and maintaining a minimal awareness of the issues that she has in her life. She is poorly grounded in reality, with a tenuous grasp of the dynamics of her life." Mother reported not being on medication due to her pregnancy; at the time of her evaluation she was only three months pregnant but admitted being off her medication for 18 months. Dr. Ryan noted that K.L.'s injuries were the result of mother's inability "to cope with or control a temper tantrum by a young child." He ultimately agreed "with the [department's] recommendation to not provide services in this case. [Mother] has had many years to address the issues outlined above and has not benefitted from the services that have been provided from multiple agencies/providers in the past. She has been non-compliant with a medication regimen. She shows significant issues in terms of judgment with regard to relationships, as well as, and most importantly, how to handle issues with a young child."
On March 9, 2011, the court held the first of a two-day dispositional hearing. Dr. Ryan testified that if mother had completed various services including a parenting class, an anger management class, conjoint counseling with father, and had been on medication for several months it would change his conclusion regarding whether mother had made reasonable efforts at treating the underlying problems which led to removal of minor's siblings. The court observed that "what mom says she has done and what she has actually done may be two separate things, and it would be a great deal more persuasive to the Court if I had the documents to support these assertions made by mother . . . ."
Prior to the continuation of the hearing on the following day, mother filed four documents substantiating her participation in various services including: (1) a letter dated March 9, 2011, from Perris Mental Health Clinic noting that mother started receiving services on December 2, 2010, had been prescribed medication, was under the care of a psychiatrist, and had last been seen by her doctor on March 8, 2011; (2) a letter dated February 23, 2011, from Catholic Charities noting mother and father had participated in 12 of an anticipated 13 sessions of a conjoint therapy program and had requested individual counseling; (3) a certificate of completion from Catholic Charities dated February 8, 2011, for participation in a 16-session anger management program; and (4) a letter of completion of a 16-week outpatient drug and alcohol program from Sun Ray Addictions Counseling and Education dated October 4, 2007.
At the continued hearing, the parties stipulated mother would testify she had been participating in mental health services and taking medication since December 2, 2010; had completed the latest of two anger management programs on February 8, 2011; had been participating and had almost completed a conjoint counseling program with father; had made significant efforts to remedy any situation that would prevent her from caring for minor; and had done everything within her power to show the court she should be given the opportunity to participate in services despite having not been provided such services. Prior to argument, the court noted, "at the outset that [mother] has made a pretty tremendous effort here, and notwithstanding her deficits, has made much more of an effort than we typically see people make who aren't being offered services."
After argument, the court reasoned "the language in [the statute] is not . . . focused on the outcome of the efforts but on the amount of effort that has been made. Has the person made subsequent reasonable efforts to treat the problems? [¶] I think it is apparent that neither parent is in a position to receive the child today, but when I look at the work that the mother has done in an effort to treat the problem, I do believe that [those] efforts have been reasonable . . . ." The juvenile court recognized the department's argument that mother would have been better off participating in individual therapy and a batterers' program, but observed, "those are some things that mother is going to need to do and has not done yet." Nevertheless, the court noted, "[t]hese other efforts that she has made, I do believe they satisfy the requirements of [the statue] so that these code sections do not prevent her from receiving services as to this latest child." The court further reasoned, "[t]he allegations, in that [previous] case, which were found true by the judge do not label mother as the abuser, but put her as an involved party, percipient witness. She should have done more than she did." The court noted that minor suffered no abuse. Ultimately, the court concluded that mother had "made subsequent reasonable efforts to treat these problems." It ordered six months of services for both parents and ordered mother to remain compliant with her medications.
It is unclear from the record to which case the court was referring.
DISCUSSION
Minor contends insufficient evidence supports the juvenile court's determination that mother had made reasonable efforts to remedy the problems leading to the removal of A.H. and K.L., such that she should have been denied reunification services. We hold that substantial evidence supports the juvenile court's order.
"While the overarching goal of the dependency law is to safeguard the welfare of dependent children and to promote their best interests [citations] the law's first priority when dependency proceedings are commenced is to preserve family relationships, if possible. [Citation.] To this end, the law requires the juvenile court to provide reunification services unless a statutory exception applies. [Citations.]" (In re K.C. (2011) 52 Cal.4th 231, 236.) A court may deny an offending parent reunification services when the court has ordered termination of reunification services for any siblings of that child and the parent has failed to make reasonable efforts to treat the problems that led to removal of the sibling. (Welf. & Inst. Code, § 361.5, subd. (b)(10).) Likewise, a juvenile court may deny reunification services to a parent whose parental rights over any sibling have been permanently severed, and the parent has failed to make reasonable efforts to treat the problems that led to removal of the sibling. (Welf. & Inst. Code, § 361.5, subd. (b)(11).)
We affirm an order regarding whether to provide a parent reunification services if it is supported by substantial evidence. (In re Harmony B. (2005) 125 Cal.App.4th 831, 839.) "'In making this determination, we must decide if the evidence is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the court's order was proper based on clear and convincing evidence. [Citation.]' [Citation.]" (Id. at p. 839-840.) "[W]hen some time has elapsed after the termination of reunification services with respect to one child, the court appropriately must take into account the parent's reasonable efforts to correct the underlying problems in the interim before the court denies reunification services with respect to [another] child." (Id. at p. 842.)
In order to deny reunification services "'"[t]he law . . . requires a finding that the parent has not made reasonable efforts to treat the problems that led to removal of the sibling."'" (Id. at p. 842, quoting Renee J. v. Superior Court (2002) 96 Cal.App.4th 1450, 1457.) "The inclusion of the 'no-reasonable effort' clause in the statute provides a means of mitigating an otherwise harsh rule that would allow the court to deny services simply on a finding that services had been terminated as to an earlier child when the parent had in fact, in the meantime, worked toward correcting the underlying problems." (Harmony B., at p. 842.) "'If the evidence suggests that despite a parent's substantial history of misconduct with prior children, there is a reasonable basis to conclude that the relationship with the current child could be saved, the courts should always attempt to do so.'" (Id. at p. 842, quoting Renee J., at p. 1464.) The "'reasonable effort to treat'" standard does not mean that the parent must have cured the problem. (Renee J., at p. 1464.)
Here, mother adduced substantial evidence below to support the juvenile court's determination she had made reasonable efforts to ameliorate the problems that led to removal of minor's siblings, such that its order that she receive six months of reunification services was proper. Mother testified she had completed a child batterers' program in October 2009, after her initial reunification services as to A.H. were terminated. Mother had completed at least two anger management programs: an eight-hour online program and a 16-week in-person program. She believed the classes were beneficial and appeared to have gained insight from her attendance: "I really like it. I'm learning a lot in them. It's helped me a lot. It's nice to be able to go there and talk about what is going on and have other people that relate to you."
Again, we note that we do not have the precise allegations made in the juvenile dependency petitions against mother with regard to minor's siblings; thus, we are forced to glean what those allegations were from the record as a whole.
To the extent that the court deemed mother's testimony credible, she contradicted the court's and the department's insinuation that she had not participated in a child batterers' program. Of course, mother never submitted documentation of such participation. Nevertheless, her testimony alone is evidence that she did so.
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Mother completed a 13-session program of conjoint counseling with father, conducted by the same instructor with whom she participated in the latter anger management course. She and father discussed issues regarding the children during the counseling sessions: The counselor "talks to us about how we feel about what is going on with the kids and how it's affecting us and so it helps us get through some of the issues and heartache that we're going through." Mother completed a substance abuse program on her own after her reunification services as to A.H. were terminated. She found the program beneficial: "It was great. I was able to have peer support. There are a lot of people that were going through the same things that I was . . . ." Mother testified she completed several parenting classes, the most recent in June or July 2011. Mother had been seeing a psychiatrist and taking appropriate medication for her condition since December 2, 2010. Thus, although we do not have the specific allegations which led to removal of minor's siblings, it would appear that mother made at least some reasonable efforts, if not, "pretty tremendous efforts" at remedying those problems. Therefore, the court's order granting mother reunification services was supported by substantial evidence.
DISPOSITION
The judgment affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
CODRINGTON
J.