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Brittany J. v. Superior Court CA5

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Brittany J. v. Superior Court CA5

Filed 6/1/18 Brittany J. v. Superior Court CA5


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.







Real Party in Interest.


(Super. Ct. No. 518057)

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Ann Q. Ameral, Judge.
Romina Otoya, for Petitioner.
No appearance for Respondent.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Real Party in Interest.
Petitioner Brittany J. is the mother of now nine-month-old R.J., who was declared a dependent of the Stanislaus County Juvenile Court and is the subject of these original proceedings. At the conclusion of a dispositional hearing, the juvenile court denied Brittany (mother) reunification services on multiple grounds (Welf. & Inst. Code, § 361.5, subd. (b)(6), (10) & (11)) and set a hearing pursuant to section 366.26 to select a permanent plan. Mother filed a petition seeking an extraordinary writ to overturn the court’s orders. (Cal. Rules of Court, rule 8.452.) She contends substantial evidence does not support the court’s order denying her reunification services. We conclude substantial evidence supports the court’s denial of services under section 361.5, subdivision (b)(10) and deny the petition.
In August 2017, the Stanislaus County Community Services Agency (agency) was notified that mother gave birth to a child, R.J. Mother was known to the agency because in 2008 her then four-month-old son, J.J., suffered severe physical abuse and his father, Eric, was the suspected perpetrator. Eric is also R.J.’s father and he and mother were living together as an intact couple when R.J. was born. The agency took R.J. into protective custody out of concern for her safety.
In the 2008 case, J.J. suffered 11 fractured ribs, major laceration of the liver, traumatic pancreatitis and respiratory failure, in addition to other systemic reactions to what the doctors determined was nonaccidental trauma. Neither parent could explain the child’s injuries. Dr. Fields, a child abuse expert, opined the fractures were the result of multiple episodes of abuse and the damage to the liver and pancreas indicated repeated blows with a foot or fist. He said the liver laceration was a grade 5, the worst grade, and could have caused the child to bleed out and die. Mother’s then five- and three-year-old sons from another relationship stated they saw Eric punch J.J. After reading the reports of J.J.’s injuries, mother stated at the time, it looked like Eric “really beat the shit” out of her baby.
In March 2008, the agency took J.J. and mother’s three other minor children into protective custody. Mother was provided reunification services (Eric was not) but did not comply and maintained a relationship with Eric. In February 2009, during the dependency proceedings, mother gave birth to a daughter and gave her up for adoption. In November 2009, the juvenile court terminated mother’s reunification services and in August 2010, terminated her parental rights. In 2012, the maternal grandfather adopted mother’s children.
On August 28, 2017, the emergency response social worker spoke to mother about the 2008 incident. Mother explained she left the children with Eric that morning and went to work. Eric called his mother and told her J.J. was crying. His mother noticed J.J. was pale and something was wrong when she went to check on him. She took him to mother at her place of work and they took J.J. to the hospital. Mother denied knowing how J.J. was injured and claimed she never suspected Eric, although at various times over the years she expressed her suspicion of him. She said she completed her reunification services but consented to adoption because she did not want to prolong the court process. She maintained contact with her children and had them for overnight visits, and was not concerned about Eric harming them.
Eric similarly described the circumstances the morning J.J. was taken to the hospital. He said law enforcement investigated but no one was charged with a crime. He was incarcerated in 2010 for robbery with a firearm but denied having a firearm. He served five years in prison and was on parole. He was arrested for driving under the influence in 2009 and 2016. He smoked marijuana but had a valid medical marijuana card. He agreed to drug test and tested positive for marijuana and cocaine. He denied using cocaine, stating it may have been in the marijuana.
The agency filed a dependency petition on R.J.’s behalf, alleging she came within the juvenile court’s jurisdiction based on parental failure to protect and abuse of a sibling. (§ 300, subd. (b)(1) & (j).) The court ordered R.J. detained and continued the matter to September 27, 2017, for jurisdiction and disposition (the hearing). The agency placed R.J. in foster care.
The agency recommended the juvenile court adjudge R.J. a dependent child and ordered her removed from mother’s custody because mother insisted on maintaining a relationship with Eric, despite his history of physical abuse. The agency also recommended the court deny both parents reunification services; mother under section 361.5, subdivision (b)(6) because of J.J.’s severe physical abuse and under subdivision (b)(10) and (11) because her reunification services and parental rights as to R.J.’s siblings were terminated.
The juvenile court continued the hearing and conducted it in February 2018 as a contested hearing. Meanwhile, in October 2017, the agency filed a second amended petition, adding section 300, subdivision (a) (serious physical harm) as an additional jurisdictional basis. The agency alleged under subdivision (a) the facts of J.J.’s physical abuse, mother’s unwillingness to take responsibility for her actions or believe Eric posed a danger to R.J. and her claim she did not know how J.J. was injured. The agency also alleged two additional counts under subdivision (b)(1), that mother and Eric provided hair follicles on September 20, 2017, that yielded positive results for cocaine and benzoylecgonine.
At the hearing, counsel presented their cases by offers of proof, which the juvenile court accepted. County counsel offered that mother provided a urine sample on September 7, 2017, that yielded a negative result but a hair follicle she provided on September 20, 2017, yielded cocaine and “benzos.” On January 4, 2018, she submitted a urine sample that was positive for “benzos” but she had a legitimate prescription. Mother was referred for outpatient substance abuse treatment and upon checking in tested positive for opioids. However, she was taking a prescribed medication that explained the positive result. The staff at the treatment program concluded she was not an appropriate candidate for treatment because she denied having a substance abuse problem. County counsel offered that social worker Bains told mother she would have to address why she refused to believe Eric harmed J.J. and admit that he presented a danger to her children. In order for the agency to recommend reunification services for her, she would have to separate from Eric, not because the agency told her to but because she was willing to accept that he presented a danger to R.J. Mother indicated she was not willing to do that. Mother and Eric continued to live together and visit R.J. together but mother continued to deny that Eric harmed their son.
Mother’s attorney made an offer of proof that mother engaged in all services offered to her and completed parenting classes and parenting group sessions. She denied using cocaine and attributed her positive results for “benzos” to Xanax, which was prescribed for her. She also had a prescription medication that caused a positive result for opioids in January 2018. She and Eric were in a relationship and lived together. She did not believe Eric harmed J.J. or posed a danger to her children. She did not commit any crimes in the prior seven years, struggle with substance abuse or incur any new agency referrals. She had steady employment, stable housing and loved R.J. very much and wanted to reunify with her.
The juvenile court sustained the section 300, subdivisions (b)(1) and (j) allegations, ordered R.J. removed from parental custody and denied the parents reunification services as recommended. The court set a section 366.26 hearing for June 4, 2018.

As a general rule, when the juvenile court orders a child removed from parental custody, it must provide services designed to reunify the family. (§ 361.5, subd. (a).) “The purpose of reunification efforts is to ‘eliminate the conditions leading to loss of custody and facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible.’ However, it is also the ‘intent of the Legislature, especially with regard to young children, … that the dependency process proceed with deliberate speed and without undue delay.’ Thus, the statutory scheme recognizes that there are cases in which the delay attributable to the provision of reunification services would be more detrimental to the minor than discounting the competing goal of family preservation. Specifically, section 361.5, subdivision (b), exempts from reunification services ‘ “those parents who are unlikely to benefit” ’ from such services or for whom reunification efforts are likely to be ‘fruitless.’ ” (Jennifer S. v. Superior Court (2017) 15 Cal.App.5th 1113, 1120, citations omitted.)
Here, the juvenile court denied mother reunification services, having found subdivision (b)(6)(A), (10) and (11) of section 361.5 applied. Subdivision (b)(6)(A) applies where a parent inflicted severe physical harm as defined in that subdivision to the child or the child’s sibling or half-sibling and the juvenile court makes a factual finding it would not benefit the child to pursue reunification services. Subdivision (b)(10) and (11) apply respectively where the court terminated reunification services or parental rights as to a sibling and the parent “has not subsequently made a reasonable effort to treat the problems that led to [the] removal of the sibling or half sibling of that child” from the parent.
On a challenge to the sufficiency of the evidence to support a denial of reunification services under section 361.5, subdivision (b), we review the record to determine whether there is substantial evidence to support the court’s order denying reunification services. (Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.) Where the juvenile court finds more than one statutory basis for denying a parent reunification services, we may affirm if there is sufficient evidence to support one of them. In this case, we conclude substantial evidence supports the court’s order denying mother reunification services under section 361.5, subdivision (b)(10) (subdivision (b)(10)). Therefore, we need not reach the issue as to subdivision (b)(6)(A) and (11).
Mother does not dispute subdivision (b)(10) applies to her insofar as the juvenile court terminated her reunification services as to R.J.’s siblings. She contends, however, that the “reasonable effort” clause of the statute does not apply because she made efforts subsequent to the dismissal of J.J.’s case in 2010 to resolve the problems necessitating his removal. For example, she asserts that the lack of evidence she engaged in criminal activity, had a substance abuse problem and was reported to child welfare constitute reasonable efforts on her part. She also points to her participation in services subsequent to the filing of the dependency petition in R.J.’s case as evidence of reasonable efforts.
Mother’s reasonable efforts argument fails on multiple grounds. First, by arguing evidence favorable to her, she is asking this court to reweigh the evidence, which we cannot do. (In re Laura F. (1983) 33 Cal.3d 826, 833.) Further, when reviewing for substantial evidence, we do not inquire whether the evidence supports a contrary finding, but whether substantial evidence, contradicted or not, supports the finding actually made. (Adoption of A.B. (2016) 2 Cal.App.5th 912, 925.) Here, we conclude that it did. The juvenile court’s rationale in finding mother failed to make reasonable subsequent efforts was her refusal to recognize that Eric nearly killed their child and to separate from him. The court stated:
“[Y]ou have consistently insisted on maintaining a relationship with [Eric], to the extent that you won’t even separate from him, that you will not recognize the statements made by your other children that he was the perpetrator of the life-threatening injuries that were sustained by [J.J.] when he was only four months old. And if you cannot get to the point of recognizing that he was a perpetrator, that you have a child with him, that you continue to live with him, I don’t see how the [c]ourt can find that you have subsequently made reasonable efforts to address the problems that caused you to lose other children, .…”
We further, conclude, contrary to mother’s assertion, the juvenile court did not err in finding reunification services would not serve R.J.’s best interest. Mother refers us to section 361.5, subdivision (c)(2), which authorizes the juvenile court to order reunification services in a case where subdivision (b)(10) applies. However, the statute is actually prohibitory; it states, “The court shall not order reunification for a parent … described in paragraph … (10), … of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.” Here, the juvenile court did not find that reunification services would serve R.J.’s best interest and mother’s refusal to acknowledge Eric posed a danger to R.J. and take appropriate action supports the court’s conclusion.
The petition for extraordinary writ is denied. This court’s opinion is final forthwith as to this court pursuant to rule 8.490(b)(2)(A) of the California Rules of Court.

Description Petitioner Brittany J. is the mother of now nine-month-old R.J., who was declared a dependent of the Stanislaus County Juvenile Court and is the subject of these original proceedings. At the conclusion of a dispositional hearing, the juvenile court denied Brittany (mother) reunification services on multiple grounds (Welf. & Inst. Code, § 361.5, subd. (b)(6), (10) & (11)) and set a hearing pursuant to section 366.26 to select a permanent plan. Mother filed a petition seeking an extraordinary writ to overturn the court’s orders. (Cal. Rules of Court, rule 8.452.) She contends substantial evidence does not support the court’s order denying her reunification services. We conclude substantial evidence supports the court’s denial of services under section 361.5, subdivision (b)(10) and deny the petition.
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