C.S. v. Superior Court

Filed 5/14/07 C.S. v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for extraordinary writ. James C. McGuire, Judge. Petition denied.

Brian Huerter for Petitioner.

No appearance for Respondent.

Ruth E. Stringer, County Counsel, and Julie J. Surber, Deputy County Counsel, for Real Party in Interest.

Petitioner C.S. (mother) challenges an order of the superior court denying her reunification services. We deny the petition for extraordinary relief.

The minorsinfant M.N. and year-old S.S.came to the attention of real party in interest on July 24, 2006, when M.N. was brought to a hospital by mother with injuries which were deemed to be suspicious. M.N. was found to have a fractured femur, fractured clavicle, and fractured skull. Contacted by a San Bernardino County Department of Childrens Services worker, mother asked the worker not to take her children, reported that she herself was a product of the system, and blamed M.N.s injuries on his day care provider. S.S. was at the time being cared for by M.N.s father and mothers former boyfriend, Jesus L. Mother also has an older child, who is in the custody of his natural father.^[1]

Jesus L. admitted that both he and his aunt had previously noticed bruises on M.N., but denied either being or knowing the source. The social worker noted that S.S.s head had an odd shape to it and the child was taken to a hospital for observation.^[2]

Maternal relatives informed the social worker that mother had a history of bipolar disorder, but when interviewed at more length for the preparation of the jurisdictional/dispositional report, mother refused to consent to a mental health evaluation on advice of her counsel. She also told the social worker that she did not need any services because I didnt do anything wrong and all of the bases are covered.

The original recommendation was that mother receive reunification services. However, this position became undermined as new information came in. In an addendum, the social worker reported that mother had made repeated referrals concerning alleged abuse of her older child around 2002, with no actual abuse having been found. On one occasion, deemed quite illuminating, mother was apparently able to involve a number of professionals (fire, police, medical personnel, and social workers) although the child in fact had no injuries. Mother was also becoming more demanding and difficult, and had begun to accuse the foster parent of abusing the children. Follow-ups by social workers and examinations by medical professionals revealed nothing to support these allegations. During a subsequent visit, mother again accused the foster mother of mistreating the children and refused to leave at the end of the visit until she was told that law enforcement would be called. She called the social worker two weeks later with new allegations and complaints, and at the next visit repeatedly examined the children for new injuries, even taking photographs apparently as evidence, although the social worker observed no injuries at all. Mother was disruptive and uncooperative throughout the visit, and appeared more interested in collecting evidence than interacting with her children. After leaving, mother made a police report against the social worker who had supervised the visit.

The childrens daytime caretakers also told investigators that the first time mother brought M.N. to the day care, he had a severe diaper rash, cradle cap, and extensive thrush in his mouth. The bottle mother left for him contained curdled milk.

Perhaps most disturbingly, the social worker reported that mother had, in the past, exhibited high-risk behavior when she was angry at her childrens fathers. While pregnant and angry with the babys father, she reportedly threw herself down the stairs, resulting in a miscarriage. The day before M.N.s injuries were discovered, mother had gone to Jesus L.s home and left, upset, when she found another woman there. Mothers former husbandthe father of her older childalso related that mother had threatened to shoot him if their son did not say nice things about mother to their sons therapist.^[3]The former husband also told the social worker that mother had a history of insisting that her children had diseases and conditions, which they did not, such as diabetes and a milk allergy.

The record, by this time, also contained a letter written by mothers sister with respect to the custody of her oldest child, expressing the view that mother was mentally ill and stating that she had been diagnosed both as bipolar and as having schizophrenic tendencies. The sister noted that mother had in fact been sexually abused by her stepfather as a child,^[4]had been in and out of mental facilities as a young person, had once woken her sister and threatened to blow your fucking head off with a gun for no visible reason, and had several times attempted suicide.^[5] The sister also described how the older boy, while in mothers care, was filthy and flea-ridden, and she stated that mother was both verbally and physically abusive to the child. Mother also resisted her suggestions that this child be checked for developmental delays, insisting that there was nothing wrong. Although the sister had at one point taken mother in because she was homeless, mother was hostile and abusive to the entire family to the point that she had to be asked to leave.

On September 18, 2006, the court ordered the matter to mediation. Although the department asked that mother be ordered to submit to a psychological evaluation, her attorney told the court that he had had a long discussion with his client and that he anticipated that well see a new [mother] over the next couple weeks. The court accepted this and did not order an evaluation.

Unfortunately, counsels optimism proved unfounded. During the mediation session, mother objected to either general counseling or the preparation of a psychological evaluation. On October 23, 2006, the court ordered mother to submit to an evaluation and she agreed, although she continued to insist that, I dont need counseling or a psychological evaluation. Given the seriousness of M.N.s injuries, this resistance led the social worker to recommend denial of services.

The psychological report, when it was prepared, hardly suggested that this recommendation was unreasonable. Mother insisted that her older son was being abused by his father after being kidnapped and that she had to pay him in order to be allowed to see the child. She claimed that she had conceived S.S. when her date slipped a drug into her drink and raped her. Although the evaluator concluded that mother had an above-average level of intellectual capability, he felt that her pervasive defensiveness prevented her from gaining any insight into the dysfunctional nature of her behavior patterns. Mothers immutable declarations that she did nothing wrong, her life is great, and what happened to her child is someone elses fault, led him to conclude that she was unlikely to benefit from any therapeutic services, due to her entrenched resistance to questioning herself . . . she will change nothing . . . .

Mother testified at the jurisdictional hearing held on December 19, 2006, describing how she had carefully chosen the day care provider and volunteering, I would have never thought they would have been like that. She denied that her miscarriage was related to a fall, but testified that she had been suffering from toxemia. Mother also described her living arrangement at the time of M.N.s injury; she had roommates and she testified that it would have been impossible for her to have injured the child without alerting one of her roommates. She described herself as a careful and vigilant mother, testifying, for example, that her children did not have cradle cap or diaper rash when she took them to day care. (See above; contrary information from the caretaker.) She denied ever having been diagnosed with any mental condition; she explained that her parents brought me to a psychiatrist, told me to lie. I did.^[6]

However, after hearing all of the evidence, the court found the minors to be dependents of the court under Welfare and Institutions Code^[7]section 300, subdivisions (a) (serious physical harm), (b) (failure to protectinjuries and mental health issues), and (e) (severe physical abuse).^[8] The matter was continued for disposition.

At the date set for further hearing, February 1, 2007, mother was not present. Her attorney, noting that she historically has been very good at showing, asked for a continuance. This was denied and the court also denied services to mother pursuant to section 361.5, subdivision (b)(2), (b)(3), (b)(5), (b)(6) and (b)(7).

This petition followed.

Mother argues that the trial court prejudicially erred in denying a continuance and that it also erred in finding that the failure to provide reunification services would not be in the best interests of the minor.

DISCUSSION

To begin with, mother has failed to show error in the denial of a continuance. Continuances in dependency proceedings are to be granted only for good cause and a request is committed to the sound discretion of the trial court. ( 352, subd. (a); In re J.I (2003) 108 Cal.App.4th 903, 912.) It is true that mothers absence was perhaps surprising, as she had consistently attended earlier proceedings. However, she failed to contact either the court or her attorney. In the absence of information from mother, it cannot be said that her unexplained absence alone constituted such overwhelming good cause that a continuance was required. In addition, the court had already had the benefit of an extensive record and lengthy testimony by mother concerning her abilities as a parent. There is no reason to suppose that mothers presence or further testimony would have led to a different result.

Although there is a preference for offering reunification services to parents recognized by section 361.5, subdivision (a), in subdivision (b), the Legislature has implicitly recognized that there will be situations in which the likelihood of failure means that offering such services is simply not in the best interests of the child. (In re Joshua M. (1998) 66 Cal.App.4th 458, 467.) When the court elects to deny reunification services, we review the ruling under the substantial evidence standard. (In re Harmony B. (2005) 125 Cal.App.4th 831, 839.)

First, real party concedes that the court improperly relied on subdivision (b)(2) and (b)(3) of section 361.5 to deny services (mental disability and previous adjudication/ subsequent removal). However, real party argues, and we agree, that the denial of services was proper under subdivision (b)(5) through (b)(7).

A.

Section 361.5, subdivision (b)(5), authorizes the denial of reunification services if the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent or guardian. With respect to this subdivision, services are not to be offered unless the court finds either that services are likely to prevent reabuse or continued neglect or that the failure to provide services will be detrimental to the child. ( 361.5, subd. (c).)^[9]

Neither such finding was made here, of course, and neither was compelled by the evidence. Mothers argument is generally premised upon the theory that she did not, in fact, inflict the injuries upon M.N., and therefore it would not be detrimental, and would be desirable, to pursue reunification. But, the trial court was entitled to draw the inference that mother did abuse M.N. and was likely to do so again. First, there was substantial evidence that mother had neglected and abused her older son and had failed to recognize when outside help was needed. Her inability to reform her chaotic lifestyle reflected her inability to perceive that there was any problem with her life or the lives of her children. The recordincluding both written materials and mothers own testimonyis replete with evidence that mother would not profit by services in the sense of affecting changes which she does not believeor at least will not admitshe needs to make.

On the issue of detriment to the children, if mother in fact fails to make changes on her own and eventually loses her parental rights, in a sense, obviously this will be detrimental to the children. No one has disputed that she cares for her children and wishes them well, and any child is presumptively better off in the custody of a competent parent than with a stranger. But, detriment must always be relative; there is no affirmative indication of a powerful bond between mother and the minors, and both are young enough to form new attachments. The trial court properly denied services under section 361.5, subdivision (b)(5).

B.

With respect to the denial of services under section 361.5, subdivision (b)(6), the court made the required express finding that to offer services would not benefit the child. Again, the record fully supports this conclusion, given the likelihood that mother would not profit from services sufficiently to regain custody of the children. Finally, at this point, subdivision (b)(7), which allows, inter alia, the denial of services with respect to one child (here, S.S.) if services have been denied with respect to another child due to severe physical abuse suffered by that child ( 300, subd. (e)) (here, M.N.) is virtually surplusage; however, that subdivision also was properly applied.

DISPOSITION

The petition is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P.J.

We concur:

GAUT

J.

MILLER

J.

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^[1] Mother indicated that S.S.s natural father did not want to be a father and was out of the picture.

^[2]Apparently, she had no injuries.

^[3] Although the father had legal custody, the matter was in flux because mother repeatedly attempted to regain custody in court proceedings.

^[4] This person was reportedly still serving time for that conduct.

^[5] This letter is replete with other information bearing on mothers capacities and performance as a parent, all of it unfavorable; in general, it paints a picture of irrationality. It was in large part corroborated by a letter written by mothers own mother.

^[6] Although a review of a cold transcript can be unreliable, it does suggest that the trial court had a sound basis for its comments that watching mood swings of mother, watching anger, watching the justification, watching the mid-sentence change to say what she felt I wanted to hear. . . . [] I spent many years dealing with drugs, with psychiatric illnesses. And if ever Ive seen one, Ive seen one today on the witness stand.

^[7] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[8] Not true findings were made with respect to Jesus L., the father of M.N.; however, he elected not to take part in the proceedings.

^[9] As real party points out, mothers reliance on the best interests standard is misplaced with respect to a denial pursuant to subdivision (b)(5). The best interests standard applies to denials pursuant to subdivision (b)(6)-(15). Denials under subdivision (b)(5) are dealt with separately.