A.F. v. Super. Ct.

Filed 1/13/10 A.F. v. Super. Ct. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Nancy B. Williamsen, Judge.

Nadine Salim, for Petitioner.

No appearance for Respondent.

John P. Doering, County Counsel, and Linda S. Macy, Deputy County Counsel, for Real Party in Interest.

-ooOoo-

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from respondent courts order issued at a contested six-month review hearing terminating reunification services and setting a Welfare and Institutions Code section 366.26^[1]hearing as to her son M. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

Petitioner and her husband, T.,^[2]are the parents of M., the subject of this writ petition. On October 4, 2008, petitioner and T. took then seven-week-old M. to the hospital because he stopped breathing while being fed. He was admitted for observation. While in the hospital, he had repeated episodes of tonic posturing of the right arm and seizures. A brain scan revealed multiple areas of intracranial hemorrhage. He was transferred and admitted to Childrens Hospital in Oakland where doctors diagnosed him as having intracranial hemorrhage and multiple extensive hemorrhages in both eyes consistent with nonaccidental trauma and suggestive of shaken baby syndrome.

Neither T. nor petitioner could explain how M. was injured. T. told an emergency response social worker that at approximately 5:30 a.m. on the day M. was admitted, he was feeding M. and as M. burped, he seemed to be gasping for air. T. took M. to petitioner who held him and was able to stimulate breathing. However, they decided to take M. to the hospital. T. stated the only other person who cared for M. was M.s maternal grandmother who babysat for him the day before. However, M. was fine when T. picked him up.

Petitioner confirmed T.s account of the circumstances preceding their decision to take M. to the hospital. She said T. stayed home with M. while she worked and her mother watched M. for the first time on October 3rd, but there were no concerns. She stated, M. had never been handled roughly or dropped. Petitioner, T. and the maternal grandmother denied shaking M. and each stated they had no knowledge of anyone else shaking him.

The Stanislaus County Community Services Agency (agency) filed a dependency petition on M.s behalf under section 300, subdivisions (a) (serious physical harm), (b) (failure to protect) and (e) (severe physical abuse), alleging M. suffered nonaccidental trauma while in the care of petitioner, T. and petitioners mother. The juvenile court ordered M. detained pursuant to the petition and placed him in foster care upon his release from the hospital.

In its jurisdictional report, the agency indicated that petitioner and T. still could not explain M.s injuries and a child abuse expert at Childrens Hospital had ruled out any organic or metabolic causes for M.s injuries. The agency recommended the court sustain the petition.

In early November 2008, the juvenile court convened but continued the jurisdictional hearing to be heard with the dispositional hearing later in the month. Meanwhile, the agency filed its dispositional report, advising the court that petitioner and T. believed medical problems during petitioners pregnancy with M. and during his birth caused the intracranial bleeding and retinal hemorrhages. They reported that a sonogram performed at 36 weeks gestation did not show portions of M.s brain. The sonogram was repeated, resulting in a better view of M.s brain but, according to petitioner and T., the doctors still could not visualize a full view of his brain. When the doctors did not repeat the sonogram a third time, petitioner and T. assumed any concerns the doctors may have had were minor.

Petitioner and T. also stated that M. had decelerations of the heart during labor, requiring petitioner to have an emergency caesarean section. They later learned the umbilical cord was wrapped around M.s neck. They also had concerns that pitocin, administered to induce labor may have harmed M. and that his yellow eyes, red spot on his head and pale palms and bottoms of his feet may have been related to his injuries. In light of their concerns, the child abuse expert was reviewing the medical records pertaining to petitioners pregnancy and M.s delivery for any causal link. However, the expert told the caseworker that her review, up to that point, indicated M.s injuries were the result of trauma.

The combined jurisdictional/dispositional hearing was continued to January 2009. Meanwhile, the expert provided a written report of her findings to the agency in which she stated none of the studies conducted (hematologic, metabolic and radiologic) or her review of past medical records suggested any underlying medical disorder that would account for M.s acute brain injuries. In the absence of an underlying medical disorder or history of accidental trauma, she concluded his injuries were most commonly seen as the result of trauma and were very concerning for inflicted brain injury.

The combined hearing was continued several more times and scheduled for late February 2009. Meanwhile, petitioner consistently participated in the parenting program, which she completed in February 2009. According to her instructor, she asked insightful questions pertaining to M. and was open to learning positive parenting skills. In addition, during individual counseling, she expressed her acceptance that M. was the victim of injury, but was not certain as to how or by whom. She was reportedly willing to take any measures necessary to secure his safety and had four more counseling sessions. The caseworker received similar reports of T.s progress in parenting classes and individual therapy.

In February 2009, on the date set, the juvenile court conducted the combined hearing at which it adjudged M. a dependent child pursuant to section 300, subdivision (b) and struck the allegations under subdivisions (a) and (e). The court also ordered a plan of reunification for both parents and set the six-month review for July 2009. The parents reunification plans were identical and required them to complete a parenting program and participate in individual counseling. In counseling, they were required to address that M. suffered nonaccidental injuries and that someone was responsible for inflicting his injuries. They were also required to demonstrate that they could protect him from further abuse. The court also ordered, as part of their reunification plans, a minimum of one unsupervised visit each week for up to six hours.

In May 2009, the juvenile court conducted an interim review hearing. In its report for the hearing, the agency reported petitioner and T. were participating in individual therapy. They acknowledged something happened to M. but did not know what and were adamant neither of them injured him. T. did not concur with the medical finding of shaken baby syndrome and believed M.s injuries could have been caused at birth. The counselor reported there was no history of domestic violence in the marriage and that the marriage was strong and supportive. She did not observe any red flags for safety issues or family dysfunction.

At the interim review hearing, it was determined petitioner and T. could benefit from further counseling so they could accept the medical experts opinions. They each had one additional session with the counselor during which they independently stressed they accepted the medical experts opinions that M. was nonaccidentally injured. However, they denied that M. was injured by them or any family member. Consequently, there were no further counseling sessions.

In June 2009, during M.s well-baby check, the examining physician noticed that his head circumference had decreased. Consequently, the physician ordered magnetic resonance imaging (MRI), which revealed no evidence of intracranial hemorrhage but revealed encephalomalacia (cerebral softening) in the left posterior portion of the brain, principally in the occipital lobe and, to a lesser degree, in the parietal lobe as well as mild atrophy of the cerebral cortex (outer layer), slightly more predominant on the left side. M. had also been determined to be developmentally delayed. As a result, he was referred to Valley Regional Medical Center (VRMC) for weekly intervention services.

Just prior to filing the six-month status review report, the caseworker met with petitioner and T. to discuss their thoughts regarding M.s injuries. They would only say they believed what the medical experts said happened to M., but would not elaborate. Because they could not explain how M. was injured, the agency opined it would be detrimental to return M. to their custody and recommended the court terminate their reunification services.

Petitioner and T. challenged the agencys recommendation and the six-month review was set as a contested hearing, which was litigated over nine partial court days in October 2009. During that time, the juvenile court trailed a motion by M.s maternal grandmother that M. be placed with her.

Petitioner and T.s counselor testified she provided parenting instruction and individual counseling to petitioner and T. Both parents accepted and understood that someone injured M. and took responsibility, as his parents, for the fact that he was injured while in their care, but they never identified a perpetrator. T. told the counselor he and petitioner asked M.s maternal grandmother about M.s injuries and she explained what occurred throughout the day she cared for M. and they were satisfied that she did not injure him. T. also told the counselor the grandmother was investigated and cleared.

The counselor further testified that in the May 2009 sessions with petitioner and T. after the interim court review hearing, neither parent really process[ed] anything, but just stated they accepted the medical opinion that M. was nonaccidentally injured. Petitioner believed it because the court was going to require her to believe it. Until the parents had more information to share or were willing to further process the information, there was no reason to continue counseling. Had either parent been identified as the perpetrator, the counselor would have recommended additional appropriate services. She also testified petitioner and T. provided her a safety plan they developed, but she said it would not protect M. because it did not identify who injured him.

The infant development specialist for VRMC (specialist) testified that her reports indicated M. was diagnosed with shaken baby syndrome and she attempted to discuss that with petitioner and T. several times, but they did not accept that he had that diagnosis. She believed they were confused about M.s medical history. She also testified that she met with petitioner and T. in September 2009 shortly after they met with the neurologist to discuss the results of M.s MRI. Petitioner and T. told the specialist that the neurologist stated the MRI did not reveal any problems. The following day, the specialist met with petitioner and T. at their home and asked to read the neurologists report. She told them that damage in the occipital and parietal lobes and atrophy were problems. To that, one of the parents replied, But theres no intracranial hemorrhaging. During that meeting, the specialist explained to them what atrophy means. She also told them several times it was important they identify who injured M.

The specialist also testified M. had language delay and problems in motor planning and navigating space, which caused him to trip. She gave petitioner and T. books to help M. develop language and explained to them M.s tripping could be the result of damage to the parietal lobe, which she explained controls depth perception and spatial awareness. Petitioner and T. told her they had not noticed him tripping.

The caseworker testified there were no further services she could provide petitioner and T. as long as the one who injured M. remained unknown. For the same reason, she did not believe that the safety plan petitioner and T. developed could be effective. She testified she was told M. had significant brain damage in the area that controls vision and the extent of the damage to his vision would not be fully known until he was older and possibly in school. She also testified petitioner and T. had weekly unsupervised six-hour visits with M. in their home and that M. enjoyed his visits. In addition, petitioner and T. attended M.s medical appointments.

T. testified he agreed it was the doctors opinions that M. was most likely injured by being shaken, but he did not know who shook him. He said M. was not out of his and petitioners sight during the evening he was injured, but his mother-in-law and brother-in-law were in the house in the three days prior to M.s injury. He stated petitioner did not shake M. but he was open to all possibilities as to who injured M., even the possibility that he injured M. On cross-examination, T. admitted not mentioning his brother-in-laws presence when originally interviewed but thought he later told the social worker.

T. denied being told by the specialist that someone had to admit injuring M. He said he did not know what atrophy meant and did not understand that M. had brain damage or he would have asked more questions as he understood that was serious. Nor did he understand the MRI results. His proposed safety plan would require him and petitioner to take classes on head injury, make sure the house was baby-proofed, and make sure anyone around M. passed a criminal background check. He did not believe petitioner injured M.

Petitioner testified she knew M. suffered nonaccidental trauma but did not know how he was injured and did not believe she, T., or her mother injured him. She said her brother was not at her mothers house the day her mother cared for M. She believed the medical experts who said M. was shaken, but was not sure of that herself. She testified the neurologist explained the findings of the MRI to her. From the explanation, petitioner understood that M.s head circumference was normal and he had brain atrophy and soft brain tissue, which had decreased in size [a] little bit. She did not know what atrophy meant and did not ask. She was not sure if brain shrinking was the same as brain damage. Petitioner denied that the specialist told her M. had speech delay, sensory perception deficit, that he fell too much or explained shaken baby syndrome to her. Her plan for keeping M. safe was to make sure only she and T. cared for M.

In closing, counsel for both parents argued the court should find it would not be detrimental to return M. to their custody. In the alternative, they argued petitioner and T. were not provided reasonable services.

At the conclusion of the hearing, the juvenile court found petitioner and T. were provided reasonable services but failed to regularly participate or make substantive progress in them. The court also found it would be detrimental to return M. to their custody. Consequently, the court terminated their reunification services and set a section 366.26 hearing. The court also reduced visitation to twice a month and denied the maternal grandmothers section 388 petition. This petition ensued.

DISCUSSION

A.                 Detriment Finding

Petitioner contends the juvenile court erred in finding it would be detrimental to return M. to her custody. We disagree.

At the six-month review hearing, the juvenile court must return the child to parental custody unless the court finds, by a preponderance of the evidence, the childs return would create a substantial risk of detriment to his or her safety. ( 366.21, subd. (e).) In assessing the risk of detriment, the court must review and consider the social workers report and recommendations and consider the efforts or progress demonstrated by the parent and the extent to which he or she availed himself or herself to the services provided. (Ibid.) However, ultimately, the courts decision hinges on whether the parents progress eliminated the conditions leading to the childs removal. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1141-1142.) On review, we examine the juvenile court's finding of detriment for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)

Petitioner argues the juvenile courts focus on the cause of M.s injury in assessing detriment rather than on her participation and progress in her court-ordered services was tantamount to relitigating its jurisdictional finding and was error. The appellate record does not support her contention. The juvenile court assumed jurisdiction based on true findings M. suffered nonaccidental injury while in the care of petitioner, T. and petitioners mother. M.s injury was not attributed to the conduct of any one of the three and, as petitioner points out, the courts jurisdictional findings are final. There is no evidence the court focused on the fact of M.s injury, which was relevant in making its jurisdictional findings. Rather, the courts focus with respect to M.s injury had to do with the heart of this case; that is, the fact that the one responsible for it had not been identified.

Petitioner further argues the juvenile court erred in finding she did not regularly participate and make substantive progress in her services plan. For that proposition, she cites the facts she completed her case plan requirements and altered her original perception that M.s injuries were caused by a difficult birth, eventually accepting that someone injured him. Petitioners argument fails. One of her case plan objectives was to demonstrate that she could protect M. from further abuse. She failed to accomplish that objective because she either could not or would not identify who injured M. even though she acknowledged it could only be one of three people, including herself. Further, she declined to continue in counseling to address that issue. Consequently, she did not regularly participate in counseling or make substantive progress in ensuring M.s safe return home.

Finally, petitioner contends the juvenile courts detriment finding was erroneously based on her continuing denial of the allegations against her. Thus, she asserts she found herself in a confession dilemma as that term is described in Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738. In that case, the appellate court considered the situation where the sole basis for establishing continuing detriment to the child was the fact that the father maintained that he never molested the child. In Blanca P., however, the detriment finding was made without ever examining whether any molestation ever really occurred (id. at p. 1742), and there was in fact substantial doubt about the matter. Here, in contrast, evidence of M.s injury was not disputed. Consequently, Blanca P. is unavailing and we affirm the juvenile courts finding of detrimental return.

B.                 Reasonableness of Services

Petitioner contends she was not provided services to help her understand M.s medical condition and address her denial that either she or a family member injured him. Therefore, they were not reasonable and the juvenile court erred in finding that they were.

Services are reasonable when the supervising agency identifies the familys problems, offers services targeting those problems, maintains reasonable contact with the offending parent(s), and makes reasonable efforts to assist in areas where compliance is difficult. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) To be reasonable, the services provided need not be perfect. The standard is not whether [they] 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.) We review the juvenile courts reasonable services finding for substantial evidence. (In reMisako R. (1991) 2 Cal.App.4th 538, 545.)

The challenge in this case from the outset was to assist petitioner understand the nature and extent of M.s injuries and to help her identify the one responsible. To that end, the juvenile court ordered her to participate in individual counseling, the specific objectives of which were that petitioner address the fact that M. was the victim of nonaccidental injuries and that someone caused those injuries and that petitioner show she could protect M. from further abuse. When, at the interim hearing, the juvenile court recognized that petitioner was struggling to accept that M. was intentionally harmed, the court required counseling focus on helping petitioner process and accept the medical opinions and explore whether family dynamics or origin impacted her ability to accept that someone in the family was the perpetrator. Petitioner attended one session at which, according the clinician, petitioner was able to repeat the courts objectives for her but was not willing to explore the meaning behind them. Thus, petitioner was unwilling to avail herself of the counseling offered. In addition, she attended M.s medical appointments and observed the specialist work with M. in her home but, according to her testimony, never asked any questions.

As is evident on this record, it is not the case that petitioner was not provided reasonable services, but that she did not take advantage of them. We conclude substantial evidence supports the juvenile courts finding petitioner was provided reasonable services.

C.                 Visitation

Petitioner contends the juvenile courts visitation order reducing visitation to weekly one-hour visits will erode the loving bond she shares with M. Consequently, the order is an abuse of the courts discretion. We disagree.

The juvenile court is accorded broad discretion in fashioning visitation orders. Absent a showing of a clear abuse of discretion, we will not interfere with the exercise of that discretion. (In re Megan B. (1991) 235 Cal.App.3d 942, 953.) As real party in interest points out, petitioner misstates the courts order. According to the appellate record, the court ordered a minimum of two visits a month and granted the agency discretion to allow more or longer visits. Given the discretion it had, the agency could, in theory, continue the visitation schedule in place. However, even if it did not and a reduction in visitation resulted, we find no abuse of discretion given petitioners failure to reunify and the courts order setting a permanency planning hearing.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.

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^*Before Vartabedian, Acting P.J., Wiseman, J., and Cornell, J.

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] T. also filed a writ petition in case number F058823.