Marie E. v. Superior Court

Marie E. v. Superior Court

Filed 8/18/08 Marie E. v. Superior Court CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

MARIE E., Petitioner, v. THE SUPERIOR COURT OF SANTA BARBARA COUNTY, Respondent; SANTA BARBARA COUNTY CHILD WELFARE SERVICES, Real Party in Interest.

2d Juv. No. B207746 (Super. Ct. No. J1121101) (Super. Ct. No. J1121102) (Super. Ct. No. J1252243) (Santa Barbara County)

Maria E. (mother) seeks extraordinary writ review of a juvenile court order denying reunification services and setting a permanency planning hearing for her two youngest children, Angel M. and Andrew T. (Welf. & Inst. Code,  366.26; Cal. Rules of Court, rule 8.452.)[1] We deny the writ petition. Substantial evidence supports the trial court's finding that mother did not make a reasonable effort to treat the problems that led to the removal and termination of parental rights of an older half sibling in a prior dependency action. ( 361.5, subds. (b)(10) & (11).) The evidence further shows that mother's neglect and parenting problems pose a substantial risk of harm and that reunification services are not in the best interests of the children. ( 361.5, subd. (c).)

Facts and Procedural History

On October 23, 2007, Santa Barbara County Child Welfare Services (CWS) filed a dependency petition for neglect, sexual abuse, and failure to protect Brian M., Angel M., and newborn Andrew T. ( 300, subds. (b), (d) & (j).) Angel told a caregiver that mother's boyfriend, James T., forced her to orally copulate him.[2] Angel identified James T. as "Daddy" and that "Daddy makes me do this, and icky stuff comes out."

CWS amended the petition to allege that mother refused to move James T. out and that child pornography was on his computer. The FBI was investigating James T. for possession and distribution of child pornography. It was also alleged that parental rights were terminated in a prior dependency action as to a half-sibling, Martina C., who was sexually abused by mother's former boyfriend (James M.).

The trial court detained Brian, Angel and Andrew, and ordered James T. to have no contact with the children. At a contested disposition hearing, mother testified that she had done nothing wrong and needed no counseling. On May 1, 2008, the trial court denied reunification services ( 361.5, subds. (b)(10) and (b)(11)) and ordered a permanency planning hearing. ( 366.26.)

Discussion

Section 361.5, subdivisions (b)(10) and (b)(11) provide that reunification services may be denied where the parent failed to reunify with the child's sibling in a prior dependency proceeding and the parent has not made reasonable efforts to treat the problems that led to removal of the sibling.[3](In re Albert T. (2006) 144 Cal.App.4th 207, 218; Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) "[T]he statute . . . provide[s] a parent who has worked toward correcting his or her problems an opportunity to have that fact taken into consideration in subsequent proceedings; it was not [intended] to create further delay so as to allow a parent, who up to that point has failed to address his or her problems, another opportunity to do so." (In re Harmony B. (2005) 125 Cal.App.4th 831, 843.)

There is no dispute that the first prong of section 361.5, subdivision (b) was established, i.e., the permanent severance of parental rights over Martina in the first dependency action. Mother argues that the second prong was not satisfied because she made a reasonable effort to correct the problems that led to the removal of the children in 2003.

First Dependency Action

In the first dependency action, four year old Martina and her half-siblings (Brian and Angel) were removed during mother's hospitalization for a pulmonary embolism. Mother had not provided for the children's care, had an extensive history of homelessness, and had been referred many times for emotional abuse and neglect of the children. Before the disposition hearing, mother was evicted from Section 8 housing and lacked the necessary housing and resources to care for the children.

Reunification services were provided to address a multitude of problems: chronic homelessness, mother's developmental disability, and mother's neglect and failure to protect the children. After mother was expelled from a homeless shelter, she leased an apartment with a new boyfriend, James T. Mother was granted visitation but Martina was extremely fearful of James T. Following the visits, Martina C. exhibited extreme behavioral problems night terrors, uncontrollable crying, tantrums, enuresis, clothes-chewing, and aggressiveness.

The experts agreed that the behavior was consistent with that of a child who had been sexually abused and that it was in Martina's best interests to terminate parental rights.[4] Mother later acknowledged Martina was sexually abused by mother's former boyfriend (James M.) and that she witnessed them have sexual intercourse on occasion.

After 18 months of reunification services, the trial court terminated services and found that Martina was adoptable. ( 366.26.) We affirmed the order terminating parental rights in an unpublished opinion. (B185682.)

Second Dependency Action

After the first dependency action was dismissed as to Brian and Angel (ages four and two respectively), they were reunited with mother in 2006. The foster parent, B.R., stayed in contact and helped mother who was living with James T. Brian and Angel trusted B.R. and viewed her as their grandmother.

On October 18, 2007, Angel told B.R. that James T. put his "pee-pee" in her mouth and made her masturbate him.

After CWS removed the children, Angel "shut down" and was afraid to talk about the sexual abuse. At a SART exam, Angel told Doctor Anna M. Kokotovic that James T. hit her "on the head, all over her body," and "hurts her." Doctor Kokotivic reported that the "'children are not safe with Mr. T[.], no matter what their sex. . . . [B]ased upon the pornography that he watches, and most of it is about oral copulation, it shows his attraction to children which puts all kids at risk.'"

Doctor Kokotovic opined that it would be detrimental for the children to reunify with mother, noting that the older sibling, Martina, had been sexually abused by mother's prior boyfriend. "[M]other has a problem picking appropriate partners, which places her children at risk of further abuse and neglect." Doctor Kokotovic reiterated that " ' no child is safe with Mr. T[.],' and . . . mother's lack of support for her daughter 'continues to place Angel at risk, and impedes the recovery process.' "

The trial court found that James T. was "extremely dangerous when it comes to young children" and there was a substantial risk that the children would be sexually abused. It found that James T. molested Angel, that there was strong evidence that he molested Martina in the past, and that all the children except

newborn Andrew had been physically abused.

The trial court further found that mother had not made a reasonable effort to treat the problems that led to the removal and termination of parental rights over Martina, nor was it in the children's best interests to offer reunification services. "[M]other, despite years of receiving services and being involved in situations with abusive relationships, has failed to take advantage of these services, separate her children and protect them from harm."

These findings are clearly established by the children's statements, the police and case worker reports, the SART exam, and Doctor Kokotovic's evaluation. It was mother's second dependency proceeding and conditions were worse for the children. The case worker reported that mother has "an obvious inability to provide for and protect her children. Her lack of insight and autonomy make her unwilling and unable to understand the impact of the sexual abuse on her child. She has continued to have a relationship with the perpetrator [James T.] despite the fact the reunification is dependent on her ability to provide support, nurturing, and a safe environment for her children."

Although mother was warned about the no contact order, she purchased a truck with James T., had him drive her about and run errands, and allowed James T. to visit the family. The trial court found it "astounding that even after the allegations against Mr. T[.] surfaced, that [mother] . . . continued to carry on business as usual with Mr. T[.] . . . ." Discrediting mother's testimony, the trial court found that "the relationship between Mother and Mr. T. has [n]ever ceased to be anything than what it is, a continuous relationship irrespective of the damage of that relationship to these

children. "

Mother argues that section 361.5, subdivision (b) does not apply because she made a reasonable effort to address the housing and employment problems that led to removal of the children in 2003. Mother asserts that she followed the case plan in the first dependency action which was dismissed as to Brian and Angel.

We reject the argument because the focus of section 361.5, subdivision (b)(10) and (b)(11) is whether mother made a reasonable effort to treat the problems that led to the removal and failure to reunify with Martina. The trial court found that the abusive relationships and parental neglect still continue and pose a substantial risk of harm to the children. "[I]t is [all] part of a long-term failure of the mother to protect her children from neglect, from homelessness, from situations in which she, apparently, depends or thinks she depends, financially on men who ill-treat her children . . . by physical abuse or sexual abuse."

"[S]ection 361.5, subdivision (b)(10), recognizes the problem of recidivism by the parent despite reunification efforts. Before this subdivision applies, the parent must have had at least one chance to reunify with a different child through the aid of governmental resources and fail to do so. Experience has shown that with certain parents, as is the case here, the risk of recidivism is a very real concern." (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 744-745; see also Cheryl P. v. Superior Court, supra, 139 Cal.App.4th at p. 96.) The risk of recidivism is not limited to a child who was the parent's previous victim. (Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 751.)

The trial court reasonably concluded that section 361.5, subdivisions (b)(10) and (b)(11) applied and that reunification services should not be offered. Section 361.5, subdivision (c) prohibits reunification services unless the trial court finds, by clear and convicting evidence, that reunification is in the best interest of the child. ( 361.5, subd. (c); Renee J. v. Superior Court (2001) 26 Cal.4th 735, 750.) Here the trial court found that if reunification services were provided, the children would "continue to suffer at the hands of [mother's] partners . . . . []  This is not a situation of one lapse in judgment, but numerous lapses in judgments in terms of the people that [mother] allows her children to be around."

The writ petition is denied.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

James E. Herman, Judge

Superior Court County of Santa Barbara

Lawrence K. Scott, under appointment by the Court of Appeal, for Petitioner.

No appearance for Respondent,

Daniel J.Wallace, Interim County Counsel, County of Santa Barbara and Toni Lorien, Deputy, for Real Party in Interest.

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[1] All statutory references are to the Welfare and Institutions Code.

[2] James T. is the presumed father of newborn Andrew T. The former boyfriend, James M., is the alleged father of Angel M. and the presumed father of Brian M.

[3] Section 361.5, subdivision (b) states in pertinent part: "Reunification services need not be provided to a parent or guardian described in this subdivision, when the court finds, by clear and convincing evidence, any of the following: [] . . . . . . [] (10) That the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from the parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from that parent or guardian. [] (11) That the parental rights of a parent over any sibling or half sibling of the child have been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent."

[4] Doctor Carolyn Wright reported that: "Brian and Angel may return to their mother with minor adjustments, but this is certainly not the case for Tina [i.e., Martina]. . . . [Mother] . . . expects Tina to attach to her boyfriend [i.e., James T.] and call him her father. . . . Tina shows signs that she was sexually abused while in her mother's care and is afraid to return to her mother's care. I would expect that if Tina is returned to her mother, that her mental and emotional problems will increase and she will need intensive mental health care for the remainder of her childhood and probably into adulthood."