Opinion
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate/prohibition to challenge orders of the Superior Court of Orange County, No. DP017506 Jane Shade, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Bryan Partridge for Petitioner.
No appearance for respondent.
Nicholas S. Chrisos, County Counsel, Karen Christensen and Jeannie Su, Deputy County Counsels, for Real Party in Interest.
OPINION
IKOLA, J.
Petitioner S.N. (mother) seeks writ review of orders that removed her two oldest sons from her custody in response to a supplemental dependency petition, and set a hearing to select and implement a permanent plan for the two boys.
Mother claims insufficient evidence supports the orders. She asserts no substantial evidence showed that the previous disposition was ineffective at protecting the boys from her physical abuse, that returning them to her custody placed them in substantial danger, or that her previous reunification services were reasonable. But the record sufficiently showed mother backslid into physical abuse despite receiving ample reunification services. The petition is denied.
FACTS
Mother has four sons: F.N., now age 11; J.N., now age 5; R.N., now age 3; and A.T., now age 2. F.N. and J.N. share a father (Father N.); R.N. and A.T. share a presumed father (Father T.).
The Initial Dependency Petition
The court declared the four boys dependents of the court and removed them from parental custody in March 2009, after mother and father T. 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 the care of mother and father T. These injuries suggested child abuse. Mother and father T. could not plausibly explain the injuries, and father T. had been arrested for child abuse. Mother and father T. failed to seek medical treatment for J.N. for over a week. Moreover, mother and father T. had an unresolved history of domestic violence. The court found J.N. had suffered severe physical abuse. (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 T. 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.
A.T. was assigned a nonconsecutive case number because he was born after the initial petition was filed. The record often refers to A.T., but it does not include the complete file from his case — for example, it lacks the order declaring him a dependent. But the parties do not dispute any material fact regarding A.T.
The court ordered reunification services for mother. Mother was offered individual counseling, joint counseling with father T., parent education, and a personal empowerment program. She substantially complied with her case plan, though she later declined Wraparound services and stopped conjoint therapy when father T. refused to go any longer. 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.
The court returned the children to mother’s custody under family maintenance supervision at the 12-month review hearing 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 Supplemental Petition
The children were taken back into protective custody and a supplemental petition (§ 387) was filed in May 2010. The petition alleged mother physically abused F.N. by hitting him on the face (§ 300, subds. (a), (b), (e)), and placed the other children at risk of suffering similar abuse (§ 300, subds. (a), (b)). Mother was arrested, leaving the children without a caretaker.
According to the detention report, F.N. — a special education student — showed up to school with a dark purple bruise, 11/2 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 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. Francisco 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 had 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 children.
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.” In August 2010, 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 even 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 of abuse 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 taken on May 26, 2010. A social worker testified about her interviews with F.N., J.N., and mother. F.N. testified father T. caused the bruises and bloody nose, but then revealed his grandparents had told him to blame father T., 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 her hitting him. Mother testified she “pulled [F.N.] out” of bed and “pulled him [in]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 hitting him, choking him, or causing the bloody nose.
At the bifurcated dispositional hearing, the court removed the children from mother’s custody, vesting custody of F.N. and J.N. with social services and awarding custody of R.N. and A.T. to father T. It denied further reunification services to mother, and set a.26 hearing for F.N. and J.N.
DISCUSSION
Mother challenges the court’s findings on the supplemental petition. “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.)
Mother challenges the sufficiency of the evidence for both the adjudicatory and dispositional findings, on three grounds. She contends insufficient evidence showed (1) the previous disposition was ineffective at protecting F.N. and J.N; (2) F.N. and J.N. faced a substantial danger if returned to her; and (3) she had received reasonable reunification services to eliminate the need for removal.
“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 previous disposition was ineffective at protecting F.N. and J.N. 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 at one point F.N. was lying back, rubbing his face and eyes, and later describing F.N. as “obviously frightened, ” “very nervous, very unsure.”
The court reasonably could have credited F.N. and J.N.’s statements about mother hitting F.N., it reasonably could have discounted F.N.’s and J.N.’s refusal to confirm their prior statements to the social worker, and discredited F.N.’s coached deflections at trial. And it reasonably could have rejected mother’s claim F.N. hurt himself by resisting her attempts at proper discipline. 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.) Mother’s attack on F.N. — hitting him in anger hard enough to leave a large, dark bruise on his face — and the “many” other times she hit F.N. sufficiently shows the previous disposition was ineffective at protecting him and J.N. from her physical abuse. (See § 387, subd. (b).)
F.N.’s maternal grandfather made a similar claim, telling a social worker he too had hit F.N. in the face, but after F.N. got angry and pinched him.
Mother does not differentiate between F.N. and J.N., conceding that if F.N. would be at risk in her custody, so would J.N.
Second, substantial evidence showed F.N. and J.N. faced a substantial danger if returned to mother’s custody, and no other reasonable means existed to protect them. (See § 361, subd. (c)(1).) It is commendable mother attended the child abuser’s treatment program that she enrolled in after the children were re-detained. But that progress does not dispel the substantial risk that mother will resume hitting the children. Before she relapsed into hitting F.N., mother had already undergone individual counseling, joint counseling with father T., parent education, and a personal empowerment program — to no apparent 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”].)
Mother contends a reasonable means existed to protect F.N. and J.N. — they could move in with her parents and let them be the caretakers. But that would require removing them from her custody, which is what she challenges on appeal.
Finally, substantial evidence showed mother had received reasonable reunification services. Reunification services “must be tailored to the specific needs of the dysfunctional family” and designed “to assist parents with inadequate parenting skills in remedying the sources of the problem.” (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) Mother received services tailored to treating her issues with physical abuse — individual counseling, joint counseling with father T., parent education, and a personal empowerment program. She enjoyed increasingly liberalized visitation, culminating in a 60-day trial placement and restoration of custody with family maintenance supervision. After re-detention, she received the child abuser’s treatment program and additional parent education. Mother complains the social worker could have met with her more often or liberalized her visitation after re-detention. But “in most cases more services might have been provided.... The standard is not whether the services provided were the best that might have been provided, but whether they were reasonable under the circumstances.” (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) These were.
At any rate, mother received nearly 28 months of reunification services — from March 2009 to January 2011. She has far exceeded the 18-month statutory maximum for reunification services. (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”].) No extraordinary circumstances warrant further reunification services.
DISPOSITION
The petition is denied.
WE CONCUR: ARONSON, ACTING P. J., FYBEL, J.