Opinion
E073196
02-06-2020
In re I.H., et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent; v. C.H.,et al., Defendants and Appellants.
Dennis G. Temko, under appointment by the Court of Appeal, for Defendant and Appellant C.H. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant M.H. Michelle D. Blakemore, County Counsel, and Jamila Bayati and Dawn Martin, Deputy County Counsel, for Plaintiff and Respondent.
In re I.H., et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent; v. C.H., et al., Defendants and Appellants. ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [NO CHANGE IN JUDGMENT] THE COURT:
The court has reviewed the petition for rehearing filed on February 20, 2020. The petition is denied. The opinion filed on February 6, 2020 is modified as follows:
1. On page 10, the first sentence in footnote seven is modified to read:
At oral argument, mother's appellate counsel argued it is inappropriate for us to consider the habeas declarations and exhibits in the direct appeal (although those matters were argued in the appellate briefs by CFS), because we failed to make an order consolidating the appeal with the habeas proceeding.
This modification does not affect the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. RAPHAEL
J. cc: See attached mailing list
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J277668, J277669) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Dennis G. Temko, under appointment by the Court of Appeal, for Defendant and Appellant C.H. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant M.H. Michelle D. Blakemore, County Counsel, and Jamila Bayati and Dawn Martin, Deputy County Counsel, for Plaintiff and Respondent.
I.H., age two months, and his sibling Il.H., age fourteen months, were brought to the attention of the San Bernardino County Children and Family Services (CFS), when I.H. was taken to the doctor for a chest congestion problem and was found to have suffered numerous fractures at different stages of healing. Jurisdiction was established based on non-accidental trauma, failure to protect, and severe physical abuse (Welf. & Inst. Code, § 300, subds. (a), (b)(1), (e)), the children were removed from both parents' custody, and reunification services were bypassed. No petition for extraordinary relief was filed after that judgment. At the hearing set for selection and implementation of a permanent plan of adoption, mother filed a petition for modification of that order (§ 388), which was summarily denied, after which the court terminated parental rights. The parents appealed.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Mother argues that the orders removing custody and denying family reunification services should be reversed because her trial counsel's representation was defective in failing to argue that (a) she was a non-offending parent, (b) the evidence of risk of harm was insufficient to warrant removal of custody, and (c) there is insufficient evidence to support the finding that mother knew or should have known of the physical abuse. Mother also argues that the juvenile court abused its discretion in summarily denying her modification petition. Father argues that if the judgment terminating parental rights is reversed as to mother, it must be reversed to reinstate his parental rights. We affirm.
BACKGROUND
In August 2018, mother, C.H., and father, M.H., had been married for two years and between them had five children, one from father's prior marriage, two from mother's prior marriage, and two from their current union, Il.H. and I.H. Mother had returned to work from her two-month maternity leave, so father was the primary caretaker of the baby. Il.H. was approximately 14 months old and I.H. was a little more than two months old when the family came to the attention of CFS.
The police reports appended to the social worker's reports indicate that Il.H. was a child from father's previous relationship. However, the petition alleges that C.H. is Il.H.'s mother, and Il.H.'s case was not heard with that of father's older child.
On August 27, 2018, the parents took the infant I.H. to the doctor because of worsening congestion, decreased urinary output, and weight loss over a two-week period. The pediatrician directed the parents to take the child to an emergency room, where a chest x-ray and CT scan revealed three fractured ribs on the left side, a fractured clavicle and a skull fracture.
An immediate response social worker interviewed the parents in the hospital and made them aware of the referral concerns. Both parents denied knowledge of how the injuries had occurred, although father thought the 14-month old Il.H. might have caused the skull fracture because she had hit the infant in the face. However, father did acknowledge that to help the baby with his congestion, he would squeeze the baby's rib cage to get him to cough it up. He did admit that he had hit the baby on the back, also help him cough up phlegm. Father speculated that the fractured clavicle might be the result of being swaddled too tightly, but he could not explain the skull fracture. The immediate response worker informed the parents that their explanation was unlikely.
The child was airlifted to Children's Hospital of Orange County (CHOC), where a full skeletal survey revealed, in addition to the previously noted injuries, that the infant had also suffered two fractured ribs on the right side that had not been seen well on the prior study, in addition to the healing fractures on the left side, as well as fractures to the tibias on each leg.
Because the parents' explanations were inconsistent with the injuries, the parents were interviewed by a patrol officer summoned to the hospital. In describing his remedy for the baby's congestion, father acknowledged that he held the baby face down while holding onto his sides, and that when he put pressure on the baby's rib cage, he could feel the ribs pushing in. However, he did not hear a snap and the baby did not cry. Mother was aware of father's technique, and she would see the baby cry when father applied pressure to his ribs, but she did not think at the time that father's actions would cause injuries.
However, mother did indicate that a few weeks before, when the baby had the bruise on his face, she saw bruises on his stomach, also. She did not think anything of it so she did not report it.
Dr. Wong, the child abuse expert, indicated the fractures were due to non-accidental trauma, and that the presence of healing fractures indicated a minimum of two incidents. Further, there was soft tissue swelling related to the skull fracture, indicating a possible third incident. Genetic testing revealed the minor did not have any medical condition that could have contributed to the injuries. Dr. Wong indicated that the 14-month old could not have caused the skull fracture, although father's method of tightly swaddling the baby might have caused the fractured clavicle.
After the initial interview by the responding patrol officer, a detective re-interviewed the father. Father again related his technique for clearing up the baby's congestion, and admitted that the squeezing might be the cause of the injuries. Father also again blamed the 14-month-old child for causing the head injuries, which he thought was limited to a bruise on the baby's cheek. The detective confronted father with the fact the victim's injuries did not match father's story. At that point father acknowledged that he had dropped the baby when attempting to get the child out of the bath.
A second detective joined the interview and when apprised of the bath story, informed father that this did not match the injuries according to what the doctor had just said. Father admitted he had only told the bath story because he thought it was what the detectives wanted to hear. Eventually, father confessed that he had hit the baby multiple times over three or four separate incidents when he lost his temper. The first incident was approximately two weeks earlier and the last incident was approximately one week ago. He hit the victim on the left rear side of the head, on the left side of his torso and on the back of the leg. Additionally, he admitted to jerking the victim out of anger as he picked the baby up, without supporting is head, causing the head to snap back. Father was arrested and transported to jail.
On September 4, CFS filed a dependency petition under section 300, subdivisions (a), (b)(1), (e) and (g), as to both children. The older children were placed with nonoffending parents, while I.H. and Il.H. were detained with their maternal uncle. At the detention hearing, the parents were admonished of the potential for a bypass of reunification services.
The jurisdiction/disposition report was filed on September 21, 2018, and included statements obtained during interviews conducted in preparation for that hearing. In this interview, mother stated father had told her that he had struck I.H. due to the child's crying, but described it as a slap; she also relayed father's explanation for the facial bruise, and surmised that the abdominal bruising was caused by a snug car seat. The social worker indicated that while both parents were willing to participate in services, neither of them could explain or take responsibility for the injuries. Additionally, they neither appeared to fully understand the severity of the injuries, nor seemed outwardly concerned over how the infant suffered multiple fractures and bruises. The report recommended no reunification services. The police reports and I.H.'s medical records were appended to the report.
On the date set for the combined jurisdiction and dispositional hearing, CFS filed an amended dependency petition. As to I.H., the petition included allegations against both parents under section 300, subdivisions (a) (nonaccidental injury); (b)(1) (failure to protect/supervise against conduct of custodian with whom child was left, failure to provide medical treatment for child's congestion, decreased urinary output and weight loss, mother's failure to protect where she knew or should have known the injuries were nonaccidental); (e) severe physical abuse by father, and mother knew or should have known; and (g) failure to provide for support arising from father's incarceration.
The infant's weight loss led to malnutrition related to his problems with feeding, which led to the insertion of a gastric feeding tube.
As to Il.H., the amended petition included allegations under section 300, subdivisions (a), (b)(1), and (g), but in lieu of an allegation under section 300, subdivision (e), CFS alleged that the child was at risk under section 300, subdivision (j) due to severe physical abuse of a sibling. On October 24, 2018, the parents denied the allegations of the amended petition.
On January 28, 2019, the date of the contested jurisdictional/dispositional hearing, the social worker submitted another CFS 6.7 additional information report, informing the court that mother had filed for divorce from father and obtained restraining orders against him. Additionally, the social worker spoke with mother's therapist who credited mother for taking initiative in filing for divorce, and indicated mother felt guilty about not knowing about I.H.'s injuries, acknowledged she needed to pay attention to the children's body language, and she missed bonding with her children.
At the jurisdiction hearing, the court received the reports into evidence without objection. Mother's counsel argued the court should find the section 300, subdivision (a) allegation untrue as to mother, and that the court should grant her reunification services. The court found not true the section 300, subdivision (a) allegation as to mother, but the petition was sustained, and the children were declared dependents. The court denied reunification services after finding, by clear and convincing evidence, that services would not be in the best interests of the children pursuant to section 361.5, subdivisions (b)(5), (b)(6), and (b)(7). The court advised the parents of the need to file a petition for extraordinary writ in order to review the judgment and set a hearing pursuant to section 366.26. No notice of intent to file a petition was filed.
Our records show that on February 6, 2019, both father and mother attempted to file a notice of appeal from the January 28, 2019 order "not remanding children back to biological parents." (E072094, In re I.H., et al., CFS v. C.H.) That appeal was dismissed as to I.H. and Il.H. on February 20, 2019 on the court's own motion because the order appealed from had set a selection and implementation hearing, which is not appealable. We note mother's declaration under penalty of perjury states that she did not try to file the appeal by herself. This is contradicted by her signature on the notice of appeal form.
On the original date set for the section 366.26 hearing, mother appeared with a newly retained attorney who indicated mother might be filing a section 388 modification petition. The section 366.26 hearing was conducted on July 11, 2019, on which date mother filed her section 388 petition (form JV-180). In the petition, mother alleged her circumstances were changed because she enrolled in and completed a new parenting program; as for how the petition would promote the children's best interests, mother pointed out that the children were bonded to her and enjoyed the visits. The court summarily denied the petition without a hearing due to lack of changed circumstances or new evidence, and because the proposed modification would not promote the children's best interests.
The court then proceeded with the hearing on selection and implementation of a permanent plan for the children. The court received into evidence all the reports and heard mother's testimony before concluding there was clear and convincing evidence the children were likely to be adopted. The court then terminated the parental rights of both parents, and admonished them of their rights to appeal the judgment.
Mother has also filed a petition for writ of habeas corpus, alleging ineffective assistance of mother's trial counsel at the jurisdiction/disposition stage. (E073800, C.H. v. Superior Court, filed 10/3/19.) She filed a motion requesting that the petition be heard with the appeal. We have considered both the petition and the appeal, but we address the petition by a separate order because consolidation is inappropriate. (People v. Waidla (2000) 22 Cal.4th 690, 703, fn.1.)
DISCUSSION
a. Jurisdictional/Disposition Challenges Have Been Forfeited.
Mother argues that the orders removing custody of the children from her, denying her reunification services, as well as the true finding against her under section 300, subdivision (e) that she knew or should have known of the physical abuse of I.H., should be reversed because the adverse judgment was the result of ineffective assistance of counsel. She urges us to consider the issues in this appeal, following termination of parental rights, notwithstanding her failure to seek writ review of the orders, because her original trial counsel failed to assist her in filing such a writ.
Father's appeal raises no substantive arguments. Instead, he posits that if the judgment is reversed as to mother, his parental rights should be reinstated, also. (Ref. In re A.L. (2010) 190 Cal.App.4th 75, 80; In re DeJohn B. (2000) 84 Cal.App.4th 100, 110.)
Even if we were to consider the accompanying habeas petition and its supporting evidence, we would decline to reach those issues because they were forfeited. (In re Hannah D. (2017) 9 Cal.App.5th 662, 678.) The record on appeal shows mother was admonished of the need to file a petition for extraordinary relief in order to seek review of the jurisdiction/disposition judgment. In support of her habeas petition, mother's own declaration acknowledges she received "appeal" forms, but she did not file them because she was confused by the boxes on the forms, had left a message with counsel's office asking for assistance, at which time she learned he was still at court, and that she did not call again because she felt calling her attorney was a lost cause. Despite knowing her attorney was at court at the time of her call, mother did not explain why she did not ask him to help her while there.
At oral argument, mother's appellate counsel argued it is inappropriate for us to consider the habeas declarations and exhibits in the direct appeal (although those matters were argued in the appellate briefs by both mother and CFS), because we failed to make an order consolidating the appeal with the habeas proceeding. We are precluded from consolidating a habeas petition with a direct appeal. (People v. Waidla, supra, 22 Cal.4th 690, 703, fn.1.) Thus, we did not grant a motion to consolidate. Nevertheless, both mother and CFS presented arguments in which reference was made to the material submitted with the petition. We have only shown that even if those matters were before us, the same result would be reached.
We acknowledge that a parent has a due process right to representation by counsel at any hearing which results in a referral to a section 366.26 selection and implementation hearing, and can raise as an issue relating prejudicial error attributed to ineffectiveness of that representation by an appropriate and timely petition. (In re Arturo D. (1992) 8 Cal.App.4th 229, 239-240.) However, we must affirm where mother fails to establish a prima facie showing of ineffective assistance of counsel. (In re Merrick V. (2004) 122 Cal.App.4th 235, 255.) Mother has failed to make such a showing where the appellate record does not affirmatively establish the absence of a tactical reason for the omission. (Ibid.) Counsel is under no duty to file futile motions or indulge in idle acts to appear competent. (Ibid., citing People v. Torrez (1995) 31 Cal.App.4th 1084, 1091.)
Moreover, even if we reached the merits, mother's arguments that counsel's failures were prejudicial and that there could be no rational tactical reasons underlying any of counsel's perceived failure is based on a misreading of the record. A careful review of mother's statements made to police prior to learning of father's confession undermines her assertions that there is insufficient evidence to support any of the findings leading to removal of the children from her custody or the bypass of reunification services.
Attached to the detention and jurisdiction/disposition reports are the reports of the patrol officer who interviewed the parents in the hospital, as well as the detective who followed up on those interviews prior to father's arrest. Those reports show that before the father confessed and was arrested, mother was interviewed separately, and, during the interviews, she admitted seeing father squeeze I.H.'s rib cage, which caused pain (evidenced by mother's observation that the baby cried), and that she had previously seen the bruising on the baby's face and torso, but thought nothing of it.
These reports, admitted into evidence, amply support the allegations of the petition that mother knew or should have known of the abuse, and that she had witnessed acts of abuse herself. These admissions by mother, made before she spoke with father as he was about to be transported to jail, are fatal to her claim that if counsel objected to the arguments by minors' counsel and CFS, different findings would have been made and she would have been granted reunification services.
Mother has failed to demonstrate ineffective assistance of counsel in representing her in the trial court, as well as in failing to assist her in filing a writ petition. Moreover, even if counsel should have filed a writ petition, his failure to do so cannot be deemed prejudicial where mother was admonished of the requirements for filing a writ petition. She could have filed one on her own.
Because there was no timely petition for extraordinary relief, mother is precluded from seeking review of the findings and judgment made at the jurisdictional and disposition hearing. (In re Hannah D., supra, 9 Cal.App.5th at p. 678.) Mother's challenges to the finding that she knew or should have known of the abuse, and that the removal of custody and the bypass of services were unlawful have been forfeited.
More to the point, even if we were to reach the merits of mother's contentions, the record contains compelling evidence she knew or should have known of the abuse and failed to protect her vulnerable infant, a finding which is fatal to her claim that but for counsel's failings, the minor would not have been removed from her and services would have been ordered.
b. The Trial Court Did Not Abuse Its Discretion in Summarily Denying Her Modification Petition.
Mother's remaining argument challenges the trial court's summary denial of her modification petition. In the petition, mother argued her circumstances had changed because she had enrolled in and completed a new parenting program, had benefitted from it, and felt confident and ready to parent her children; the best interests of the children would be promoted because they were bonded to her and enjoyed the visits. On appeal, mother asserts these allegations constituted sufficient changed circumstances to warrant a hearing on the merits of her petition to seek reinstatement of reunification services. We disagree.
Section 388 allows a parent to petition the court to change, modify or set aside any previous order. (§ 388, subd. (a).) "The petitioner has the burden of showing by a preponderance of the evidence (1) that there is new evidence or a change of circumstances and (2) that the proposed modification would be in the best interests of the child." (In re Mickel O. (2011) 197 Cal.App.4th 586, 615.) However, when a parent petitions the court to modify an order that reunification services were not needed pursuant to section 361.5, subdivision (b)(6), the court may modify the order only if it finds by clear and convincing evidence that services would be in the child's best interests. (§ 388, subd. (a)(2).)
"To support a section 388 petition, the change in circumstances must be substantial." (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223.) In other words, the change of circumstances must be of such significant nature that it requires a setting aside or modification of the challenged prior order. (In re Mickel O., supra, 197 Cal.App.4th at p. 615.) To obtain a hearing on a section 388 petition, the parent must make a prima facie showing as to both elements. (In re K.L. (2016) 248 Cal.App.4th 52, 61; In re G.B. (2014) 227 Cal.App.4th 1147, 1157; see Cal. Rules of Court, rule 5.570(d)(1).)
However, when a juvenile court bypasses reunification services due to a finding that a child suffered "severe physical abuse" (§ 300, subd. (e)), the focus of the dependency proceedings turns to the child's need for permanence and stability instead of family reunification. (In re A.M. (2013) 217 Cal.App.4th 1067, 1074-1075.) Once severe abuse has been found, a court is "prohibited from granting reunification services 'unless it finds that, based on competent testimony, those services are likely to prevent reabuse . . . or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent.'" (Id., at pp. 1074-1075, quoting § 361.5, subd. (c).)
Stated another way, in the "comparatively extreme situation[]" when a child is the victim of severe abuse, the legislative presumption is that services are not to be provided to the parent. (In re A.M., supra, 217 Cal.App.4th at p. 1074.) When this presumption applies, the evidentiary burden is heightened at any hearing to consider a section 388 petition requesting reunification services.
In such a case, a juvenile court may modify an order denying reunification services only if there is clear and convincing evidence that the services would be in the child's best interests, and only if it makes the same findings that would have been required to offer services at the disposition hearing instead of bypassing services. (§§ 361.5, subd. (b)(5), 388, subd. (a)(2); Cal. Rules of Court, rule 5.570(h)(1)(B); In re G.B (2014) 227 Cal.App.4th 1147, 1157-1158, citing In re A.M., supra, 217 Cal.App.4th at pp. 1075-1077.)
A section 388 petition is addressed to the sound discretion of the juvenile court, and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. (In re L.S. (2014) 230 Cal.App.4th 1183, 1194; see also In re Stephanie M. (1994) 7 Cal.4th 295, 318.) In considering whether the petitioner has made the requisite showing, the juvenile court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.)
Considering the entire factual and procedural history of the case, there has been no "'competent testimony [that] services are likely to prevent reabuse . . . or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent.' [Citation.]" (In re A.M., supra, 217 Cal.App.4th at pp. 1074-1075.) Absent competent evidence that services could prevent reabuse, or that denying efforts to reunify would be detrimental to the children due to a strong attachment, the court was well within its discretion to summarily deny the petition.
The bypass of services for mother was grounded on the fact she knew or should have known of the abuse, after seeing bruises on the infant and seeing father squeeze the child's ribs, causing the infant to cry, and that she failed to take protective action. Additionally, the child had suffered from worsening congestion for at least two weeks, until he suffered substantial weight loss and decreased urinary output, as well as other medical issues that required the insertion of a gastric feeding tube, yet mother failed to provide adequate medical attention. Mother's modification petition does not demonstrate she has addressed any of the concerns that led to the removal of custody. (In re A.A. (2012) 203 Cal.App.4th 597, 612, citing In re Kimberly F. (1997) 56 Cal.App.4th 519, 531-532.)
Because she had already completed a parenting program prior to the jurisdiction/disposition hearing, her re-enrollment in a similar program does not constitute a change of circumstances, especially for a case involving severe physical abuse of an infant. Additionally, the therapy mother had participated in prior to the disposition hearing did not address her culpable neglect in failing to seek treatment for an obviously ailing child who had unexplained bruising on his face and torso, and it appears that as of the date of the section 366.26 hearing, she had omitted to address that issue.
Mother's failure to protect her children against severe physical abuse and neglect of necessary medical treatment were the presenting causes of her loss of custody and denial of services, but mother had not addressed them to any degree. There were no changed circumstances. As for the best interests prong, mother's petition does not satisfy the requirement that she demonstrate the children were "closely and positively attached" to her. Feeding and changing diapers during visits does not establish a close and positive attachment that would be detrimentally affected if services were not ordered.
Mother's petition failed to establish a prima facie basis for modification, thereby warranting summary denial.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. RAPHAEL
J.