Opinion
E071059
09-18-2019
In re M.A., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.G., Defendant and Appellant.
Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Svetlana Kauper, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J275621) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel, Svetlana Kauper, Deputy County Counsel, for Plaintiff and Respondent.
M.G. (mother) appeals from dispositional orders of the juvenile court made in a dependency proceeding as to her son, M.A. (the child). Those orders included removal of the child from mother's care and denial of family reunification services to her. She argues that the court should have exercised its discretion to provide services. We affirm.
BACKGROUND
In April 2018, the child and his family came to the attention of San Bernardino County Children and Family Services (CFS) after it received an emergency response alleging that the child's five-year-old autistic half brother arrived at school over two weeks earlier smelling of cigarette smoke and with a mark on his hand that appeared to be a cigarette burn.
At the time, the child was seven years old and living with his mother. His younger half siblings, who are not subjects of this appeal, also lived in the home. The child had regular contact with the father of his half siblings, M.T., who lived elsewhere but would take all the children into his care two or three times a week. The child often visited his biological presumed father M.A. on weekends. He referred to both men as "dad."
Upon receipt of the referral, CFS arranged for forensic examinations of all three children, which revealed that they had scars and marks suggesting they had suffered nonaccidental injuries.
The examiner concluded that scars on the child's five-year-old half brother were consistent with an intentionally inflicted cigarette burn and with being grabbed on the arm. History of two other injuries that required stiches and medical glue were of concern because mother's explanations for them were inconsistent.
The child's two-year-old half sister had several linear and curvilinear scars on her torso and legs that were consistent with being struck by a belt, and a concerning bruise on her cheek.
The child had a circular scar on his back that he said was inflicted by M.T. He reported that mother saw his burn, and that he told mother he saw M.T. burn his half brother, but she did not respond. He later recanted, telling the social worker that he never suffered a burn and, though he knew his half brother had been burned, he did not know who did it. The child also reported mother and M.T. "whoop" him and his half siblings with a belt, and mother always whoops his half brother with her hand or a sandal. The three children would sometimes urinate on themselves while sitting in a corner on timeout. When that happened, mother would whoop them again.
CFS took the children into protective custody and filed Welfare and Institutions Code section 300 juvenile dependency petitions as to each of them. At the detention hearing, the juvenile court ordered them detained. Services were ordered to be provided to mother and the fathers of the children pending disposition.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
At the hearing on jurisdiction, the juvenile court sustained the petitions of all three children. As to the child, the court found he came within subdivision (a) of section 300, sustaining the allegation that a forensic medical examination revealed the child had suffered serious physical harm inflicted nonaccidentally and that mother whoops him with a belt. The court found the child came within subdivision (b)(1) of section 300 on account of his nonaccidental injuries inflicted by M.T. and because mother knew or should have known M.T. was abusing the child and took no action to protect him.
With respect to disposition, the juvenile court adjudged the child and his half siblings dependents of the court. It ordered their removal from mother's care. The child was placed with his father with provision of family maintenance services. It found that the child and his half siblings had suffered severe physical harm and that it was not in the best interests of the children to offer services to mother or M.T. The cases of the half siblings were set for selection of a permanent plan.
Mother appealed the orders made as to all three children. We dismissed on our own motion the appeals concerning the child's half siblings because the orders made as to them are not appealable but may be reviewed only as the subject of petition for an extraordinary writ. (§ 366.26, subd. (l).)
DISCUSSION
In her opening brief, mother argues that the juvenile court abused its discretion by not ordering reunification services for her pursuant to section 361.5, subdivision (c)(2). In its respondent's brief, CFS argues that (1) the denial of services to mother was not an abuse of discretion under section 361.5, subdivision (c)(2), and (2) because at disposition the child was removed from mother and placed with the previously noncustodial father, the provision of services to mother is actually governed by section 361.2, and the denial of services to mother was not an abuse of discretion under that provision either. Mother's reply brief does not address section 361.2. We agree with CFS that the issue is governed by section 361.2 and that the juvenile court did not abuse its discretion.
If at disposition a child is placed in foster care, then section 361.5 requires the court to order reunification services for the mother and the presumed father, subject to various exceptions. (In re Pedro Z. (2010) 190 Cal.App.4th 12, 19.) But "section 361.5 is inapplicable when at the disposition hearing a child is returned to the custody of a parent." (Id. at p. 19.) Rather, when a child is removed from one parent and placed with a previously noncustodial parent at disposition, section 361.2 controls. (In re Erika W. (1994) 28 Cal.App.4th 470, 475.) Under section 361.2, the court has discretion to order services for the previously custodial parent, the newly custodial parent, or both parents, or the court may order services for neither parent and terminate jurisdiction. (§ 361.2, subds. (b)(1), (b)(3); In re Erika W., supra, at p. 475.) An order denying services to a previously custodial parent under section 361.2 is therefore reviewed for abuse of discretion. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.)
Here, the juvenile court declined to order services for mother because the court determined that ordering them would not be in the child's best interest. The court did not abuse its discretion.
Even after mother had completed a parenting program and made progress in counseling services, the psychologist retained by her counsel concluded after examination that her prognosis was uncertain. The psychologist noted her intense major depressive disorder, pronounced distrust of others, and difficulty controlling her anger.
Moreover, even though she had attended nine counseling sessions and completed parenting classes, mother's testimony at the hearing on jurisdiction and disposition suggested that she did not comprehend the severity of the injuries or recognize that she should have known that they occurred. She continued to tell inconsistent stories about some of the children's injuries and minimized or denied others. She said there were no marks on her two-year-old daughter, either before or after the forensic examination that had revealed several scars consistent with being struck with a belt. She denied ever hitting any of the children with a belt and opined that most of the marks found on the children were caused by scratches from her long fingernails when she would grab or spank them.
As to the burns, mother initially reiterated her explanation given to her therapist that the burns were not intentionally inflicted but were somehow caused by a "blunt" that had been left around her house. After it was established later in her testimony that she did not smoke marijuana or know if M.T. did, and that a blunt would have to be lit to cause a burn, mother adopted her counsel's statement that she was worried that someone inflicted the injury. She then suggested that someone, not M.T. but perhaps one of the many people who used to babysit the children, might have burned the child and his half brother. She did not think M.T. posed a risk to the children and believed the child pointed to M.T. as the one who burned his half brother only because he had heard the social workers suggest that possibility.
On appeal, mother posits that services should have been offered because the evidence established that the child is bonded to her. We are not persuaded. The juvenile court noted the bond between the child and mother but declined to pursue reunification in view of the severity of the nonaccidental injuries and the emotional trauma suffered by the child, as well as mother's significant issues. The court did not abuse its discretion by determining that any potential impairment of the bond between mother and the child was outweighed by the considerations supporting the denial of services to mother. Moreover, the court did not terminate mother's parental rights, so it did not completely sever the bond between mother and the child. Rather, mother retains her parental rights, including court-ordered visitation, and she remains free to pursue voluntary services and to seek liberalized visitation or physical custody when she believes she has made sufficient progress.
Mother also claims that the juvenile court failed to give due consideration to mitigating circumstances such as how her medical issues and her personal history affected her parenting, her progress in services to address those issues, and her lack of prior child welfare history. That argument is essentially a request that we reweigh the evidence, which is beyond our authority. (In re G.L. (2014) 222 Cal.App.4th 1153, 1166.)
The juvenile court's denial of services was not an abuse of discretion because mother did not meet her burden of establishing by clear and convincing evidence that reunification would be in the child's best interest.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J. I concur: RAPHAEL
J. RAMIREZ, P. J., Concurring.
I agree with the majority's conclusion that the juvenile court did not abuse its discretion when it declined to offer family reunification services to mother. I write separately because the majority arrives at the correct result but does not apply the correct statute. It is Welfare and Institutions Code section 361.5, not section 361.2, that governs the issue presented in this case.
All further statutory references shall be to the Welfare and Institutions Code.
The juvenile court asserted jurisdiction after finding the child came within subdivision (b) of section 300 on account of the conduct of both his parents. Thereafter, it adopted the recommendation of San Bernardino County Children and Family Services (CFS) to bypass family reunification services as to mother pursuant to subdivision (b)(6) of section 361.5 and to return the child to his father's custody with provision of family maintenance services. On appeal, mother does not challenge the decision to bypass services, but argues that the juvenile court abused its discretion when it found the child's best interest would not be served by providing her family reunification services pursuant to subdivision (c) of section 361.5.
In an effort to bolster her argument, mother posited that bypass of services as to her undermined the dependency goal of preserving the family. In response, CFS noted the court's decision achieved that goal by removing the child from mother and placing him "back into" the custody of the "nonoffending" father "under section 361.2, subdivision (b)," thereby making reunification services discretionary under that statute.
The majority embraces CFS's claim that 361.2 governs the issue whether the juvenile court abused its discretion when it denied services. I disagree. Section 361.2 applies only if the juvenile court places a dependent minor with a previously noncustodial parent whose conduct did not bring the child within the juvenile court's jurisdiction. (In re A.A. (2012) 203 Cal.App.4th 597, 608.)
Here, the court properly treated both mother and father as offending custodial parents in keeping with the recommendations of CFS. It sustained section 300 allegations as to both parents, bypassed services for mother pursuant to section 361.5, and "return[ed]" the child to the father's care with provision of family maintenance services in accordance with subdivision (c) of section 362 and rule 5.695(a)(5), (b)(2) of the California Rules of Court.
A juvenile court may find that a child resides with both parents if the parents share custody even though they do not live together in the same home. (In re Anthony Q. (2016) 5 Cal.App.5th 336, 352.) In this case, the record supports the juvenile court's implied finding that father was a custodial parent. He was not a mere visitor in the child's life at the time the petition was filed. Rather, he was a fully participating parent who had an informal agreement with the mother to share custody. The child stayed with father on weekends and during school holidays. Father held educational rights and participated in ensuring the child received medical care. CFS also indicated to the court that its investigation concluded father was custodial, initially recommending removal of the child from both mother's and father's physical custody, and later recommending the child's return to father with provision of services and section 361.5 bypass of services as to mother. And, father's status as a coparent was such that the court found him to be a presumed father who should have known of the inappropriate physical discipline employed by mother.
Moreover, even if father was not a custodial parent, he was an offending parent, that is, the court sustained the allegation that father's conduct brought the child within its jurisdiction pursuant to subdivision (b) of section 300. That the noncustodial parent be nonoffending is a requirement of placement pursuant to section 361.2. (In re A.A., supra, 203 Cal.App.4th at p. 608.)
In view of father's status as a custodial offending parent, CFS was correct in recommending bypass of services for mother pursuant to section 361.5 and the court properly relied upon that statute in deciding whether to offer services to her. Section 361.5 governs the provision of family reunification services when a child who is a dependent of the court is removed from one parent's custody and the other parent does not come within section 361.2.
In relevant part, subdivision (a) of section 361.5 requires services to be provided to the parent from whom the child is removed unless the juvenile court finds by clear and convincing evidence that one of the exceptions (commonly referred to as bypass provisions) set forth in section 361.5, subdivision (b), applies. To bypass reunification efforts pursuant to section 361.5, subdivision (b)(6), as the juvenile court did in this case, the court must find clear and convincing evidence of infliction of severe physical harm to the child or the child's half siblings and no benefit to the child to pursue reunification with the offending parent. (§361.5, subds. (b)(6) & (i).) Subdivision (c)(2) of section 361.5 prohibits reunification for a parent bypassed pursuant to subdivision (b)(6) unless the parent establishes by clear and convincing evidence that reunification would be in the child's best interests. (§ 361.5, subd. (c)(2); In re William B. (2008) 163 Cal.App.4th 1220, 1227 (William B.).)
A juvenile court has broad discretion when determining whether a child's interest is best served by offering services to the parent under section 361.5, subdivision (c)(2). (William B., supra, 163 Cal.App.4th at p. 1229.) We will not disturb that determination unless the court exceeded the bounds of reason and made an arbitrary, capricious, or patently absurd decision. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) For the reasons set forth in the majority opinion, mother did not meet her burden of establishing by clear and convincing evidence that reunification would be in the child's best interests.
RAMIREZ
P. J.