In re C.K.

Filed 8/5/09 In re C.K. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Anthony A. Trendacosta, Juvenile Court Referee. Reversed and remanded.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Appellant.

Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Respondent.

_________________

The Department of Children and Family Services (DCFS) challenges a juvenile court order granting reunification services to H.E. (mother), the mother of C.K. (born Nov. 1997) and A.K. (born Dec. 2003). DCFS contends that the juvenile court had no discretion to order reunification services for mother and A.K. absent a finding that such services would likely prevent reabuse or that denying services would be detrimental to the child because of a close parent-child relationship. (Welf. & Inst. Code, 361.5, subds. (b)(5), (c).)[1] It further argues that the juvenile court had no discretion to order reunification services for mother and C.K. because no evidence was offered to show that reunification was in the best interest of that child. ( 361.5, subds. (b)(7), (c).)

We agree. There is no evidence to support the juvenile courts order of reunification services. Accordingly, we reverse. The matter is remanded to the juvenile court for a hearing, after DCFS conducts a full investigation pursuant to section 361.5, subdivision (c), to determine whether reunification is likely to be successful between mother and A.K.[2]

FACTUAL AND PROCEDURAL BACKGROUND

Section 300 Petition; Detention Report; Detention Hearing

On July 25, 2008, DCFS filed a petition on behalf of the children pursuant to section 300, subdivisions (a) (physical abuse by parent), (b) (neglect), (e) (severe abuse of a child under five), (i) (cruelty), and (j) (abuse of sibling). The family came to the attention of DCFS on July 22, 2008, after an abuse referral was made alleging that A.K. has been physically abused by mother. DCFS assigned a social worker to the case, who went to Millers Childrens Hospital to interview mother.

Mother reported that she and A.K. were at the home of D.S., mothers boyfriend, the previous night. While mother was in the shower, D.S. apparently noticed that A.K. was having a difficult time moving. D.S. then noticed that A.K. had doz[ed] off and fell on her side onto the couch. D.S. noticed that A.K.s arms and legs were stiff. D.S.s mother, who was also in the house at the time, thought that A.K. might have had a seizure. Mother and D.S. took A.K. to Little Company of Mary Hospital. A.K. was transferred to Millers Childrens Hospital, where she underwent a craniotomy (brain surgery).

Mother said that she never saw A.K. hit her head. She denied hitting A.K. and said that she never saw anyone hit A.K. Mother had no explanation for how A.K. became ill.

The social worker then interviewed D.S. D.S. reiterated what mother had reported regarding A.K.s condition. He stated that he never saw A.K. fall or hit her head. He never saw mother hit A.K. or C.K. And, he denied ever hitting the children.

The social worker also interviewed the pediatric intensive care unit nurse, Hazel Vega (Vega). Vega said that no injuries or trauma had been found on A.K. Mother told Vega the same story she told the social worker. Vega advised the social worker that A.K. was out of surgery and heavily medicated.

The DCFS social worker also interviewed Dr. Carlos Maggi. He stated that A.K. was transferred to Millers Childrens Hospital after she sustained a subdural hematoma to the right side of her brain. According to Dr. Maggi, the injury was very unusual in its presentation. It appeared to be traumatic and the result of blunt force trauma. He could not rule out child abuse. After A.K.s head was shaved for surgery, another doctor, Dr. Pak, had observed a yellowish bruise on the childs scalp.

Next the social worker spoke with Dr. Kenneth Kim. He confirmed that A.K. suffered a subdural hematoma, and he too could not rule out child abuse because her injuries were highly suspicious.

As a result of A.K.s unexplained injuries, DCFS detained A.K. and C.K. from mother.

The social worker then interviewed C.K. He denied ever being hit, denied being scared of anyone in the home, and said that he felt safe. He wanted to return to mother.

At the detention hearing held on the same date, the juvenile court found a prima facie case for detaining the children from mother. The juvenile court order reunification services for mother, including individual counseling and parent education. The matter was continued to September 17, 2008.

Jurisdiction/Disposition Report

In its September 17, 2008, report, DCFS reported about its continuing investigation. The social worker reinterviewed C.K., who reported that D.S. punished the children by making them stand in the closet with their hands raised and by making them run laps. He said that sometimes mother punished the children the same way, but never required them to run laps. C.K. indicated that A.K. was punished a lot. He did not know how A.K. sustained her head injury. He informed the social worker that the family had been living with D.S. for about five months; prior to that, they lived with the maternal grandparents. C.K. wanted to return to living with his maternal grandparents.

The social worker interviewed A.K. in her hospital room. She stated: There are scabs on my head. I was riding my bike and I fell off my bike, thats what, thats really what happened to me. She said that she did not tell anyone that she fell because she did not want anyone to know. She denied that anything scary or sad happened at D.S.s house. She also denied ever getting in trouble.

The childrens paternal great aunt reported that about three months ago, the maternal grandparents told her that mother and A.K. went to their home to collect some belongings and A.K. grabbed onto her grandmother and said Im scared, please dont take me there. The aunt attributed the problems to D.S. because prior to mother having a relationship with him, she never even yelled at the child. The maternal grandfather confirmed the incident and A.K.s desire not to return to D.S.s home.

The maternal grandmother reported that on another occasion when A.K. was living with mother and D.S., A.K. asked her grandmother to pick her up from school because she did not want to go home. According to the grandmother, within two weeks of mother moving out with the children, A.K. was not happy. She told her grandmother that mother put [her] in the closet. Mother explained her conduct as giving the children break time.

The social worker reinterviewed Dr. Maggi. He reported that based on A.K.s injuries, it appeared that she suffered blunt force trauma to her head. Based upon his 30 years of experience, Dr. Maggi did not believe D.S.s explanation of what had occurred.

The social worker also spoke with Detective Ed Desbiens from the Torrance Police Department. D.S. also told the detective that A.K. rode her bike without a helmet. He claimed that he never saw A.K. fall.

Dr. Tse, who accompanied A.K. during her transport from Little Company of Mary Hospital to Millers Childrens Hospital, reported that after he explained to mother that A.K. was critically ill and might not survive the transport or the brain surgery, mother declined to ride with A.K. in the ambulance.

According to A.K.s former hospital social worker, after A.K. awoke from her surgery, she asked the nurse if she could be her mommy because her mommy hits her. A.K. also indicated that mother hit C.K.

DCFS recommended that the juvenile court deny mother reunification services. The juvenile court continued the matter for trial.

Supplemental Report

DCFS submitted a supplemental report on the date of trial. C.K. informed the social worker that D.S. put both him and A.K. in the closet about four times a week; A.K. was forced to stay for about two to three hours, and C.K. stayed in the closet for one to two hours. A.K. would cry when she was in the closet. According to C.K., when D.S. put the children in the closet, mother did nothing.

After C.K. told mother that he did not like being put in the closet, she and D.S. made the children run laps at the park. He denied that mother hit either him or A.K.

In the meantime, A.K. participated in a forensic interview with Nicole Farrell (Farrell), a social worker from Millers Childrens Hospital. A.K. reported that D.S. had hit her on the head repeatedly with a baseball bat and kicked her between her legs. Specifically, A.K. stated that D.S. bonked [her] head with a baseball bat. Bonk, bonk, bonk. She also stated that mother never helps her. She did not report the abuse earlier because D.S. told her to keep it a secret.

A.K. asked Farrell not to tell mother about the disclosure because mother would get mad. A.K. stated that when mother gets mad, she hits A.K. with a hand and puts the child in the closet.

The DCFS social worker also spoke with A.K. She reported that when she gets in trouble, D.S. makes her put her hands up, tongue up and head back in the closet. When asked if D.S. ever did anything to make her scared, A.K. replied: Its a secret. I cant tell secrets. When asked who told her it was a secret, she said: Nobody. I just figured it out by myself. Finally, when the social worker inquired if D.S. ever hurt her, A.K. responded: I cant tell. Its a secret, remember? I cant tell its a secret.

Medical records revealed that on August 14, 2008, A.K. underwent a second surgery, a cranioplasty. While in recovery, A.K. again stated that she wanted a new mommy, and asked the nurse if she would be her mommy, because mother hits her.

A.K. underwent a third surgery on August 20, 2008.

According to the nursing notes, mother began visiting A.K. in the hospital on August 5, 2008. Prior to that, A.K. was not allowed visitors, but mother would call frequently to check on her. While A.K. cried that she missed her father,[3]there are no notes indicating that A.K. said anything about missing mother.

At the conclusion of its supplemental report, DCFS refers the juvenile court to the jurisdiction/disposition report regarding its recommendations.

Trial; Order for Reunification Services

At trial on November 13, 2008, the juvenile court sustained the section 300 petition, as amended. The children were declared dependents of the juvenile court under section 300, subdivisions (b), (e), and (j), and removed them from parental custody.

Regarding reunification services, DCFS urged the juvenile court to deny services because she failed to protect A.K. from the extreme abuse by D.S., actually participated in some of the abuse, and help D.S. cover up the abuse. County counsel also argued that mother presented no evidence that the denial of services would be detrimental to the children. Mother, the children, and the childrens father asked the juvenile court to offer mother services, asserting that reunification services were in the childrens best interests. The childrens attorney represented that both children loved mother, missed her, and wanted to return to her care. Mothers counsel indicated that mother was no longer in a relationship with D.S. In support of her argument, mother offered into evidence a letter dated November 8, 2008, from South Bay Center for Counseling, indicating mothers attendance at four out of 25 sessions of a parent support group.

After entertaining oral argument, the juvenile court ordered DCFS to provide reunification services to mother. It reasoned: As I indicated to counsel, having reviewed the file and its contents, especially in light of what appears clearly to the court to be that the perpetrator was [D.S.]. I had indicated that I would be inclined, especially in light of what [the childrens attorney] fed me as the typical C.L.C. line, that as long as Im giving reunification services to the father in any event. [] I see no reason at this particular point thatit is in the childrens best interest to provide reunification services to the mother. However, I would say that if in fact any part of this forensic interview is trueand I have no reason to doubt itI just cant understand it at all. It sickens me that you would allow that to happen. [] . . .  [] I am exercising my discretion. I do find its in the childrens best interest to have reunification with the mother.

DCFSs Appeal

On December 9, 2008, DCFS filed a timely notice of appeal from the juvenile courts order of reunification services.

Section 366.21, subdivision (e) Hearing

The juvenile court held the 366.21, subdivision (e) hearing on March 25, 2009.[4] It found mother in full compliance with the case plan and again ordered family reunification services. The matter was continued to September 23, 2009, for a section 366.21, subdivision (f) hearing.

DISCUSSION

I. The Appeal is not Moot

Mother argues that this appeal should be dismissed as moot.

As a general rule, an appellate court only decides actual controversies. (In re Joel H. (1993) 19 Cal.App.4th 1185, 1193.) When no effective relief can be granted, an appeal is moot and will be dismissed. [Citation.] [T]he duty of this court . . . is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. [Citation.] . . . [W]hen, pending an appeal from the judgment of a lower court, and without any fault of the [respondent], an event occurs which renders it impossible for this court, if it should decide the case in favor of [appellant], to grant him [or her] any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. [Citations.] [Citation.] (In re Jessica K. (2000) 79 Cal.App.4th 1313, 13151316.)

[A]n action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events . . . because [a] reversal in such a case would be without practical effect. (In re Dani R. (2001) 89 Cal.App.4th 402, 404.) It necessarily follows that when . . . an event occurs which renders it impossible for this court, if it should decide the case in favor of [appellant], to grant . . . any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. [Citation.] (Giles v. Horn (2002) 100 Cal.App.4th 206, 227.) The question of mootness must be decided on a case-by-case basis. (In re Hirenia C. (1993) 18 Cal.App.4th 504, 518; In re Kristin B. (1986) 187 Cal.App.3d 596, 605.)

Mother argues that the appeal is moot because the six-month grant of services to mother issued at the time of disposition has come and gone. We cannot agree. As DCFS points out in its reply brief, the juvenile court did not offer mother only six months of services. The juvenile courts order is silent as to how long services were being offered. Thus, as DCFS correctly theorizes, pursuant to sections 361.5, subdivision (a)(1) and 366.21, subdivision (f), mother would be entitled to 12 months of services, and nothing in the juvenile courts orders indicates that it was offering her anything less than that.

In re Pablo D. (1998) 67 Cal.App.4th 759, cited by mother, is readily distinguishable. In that case, the parents had already received the maximum amount of reunification services allowed by statute while the appeal was pending. (Id. at p. 761.) Under those circumstances, the Court of Appeal deemed the appeal moot. (Ibid.) In contrast, in the instant case, the reunification period is ongoing; the 12-month review hearing is not scheduled until September 23, 2009. Thus, the appeal is not moot.

II. Substantial Evidence Does not Support the Juvenile Courts Order Granting Mother Reunification Services

As a general rule, reunification services are offered to parents whose children are removed from their custody in an effort to eliminate the conditions leading to the loss of custody and facilitate reunification of parent and child. This furthers the goal of preservation of family, whenever possible. (Raymond C. v. Superior Court (1997) 55 Cal.App.4th 159, 163; see 361.5, subd. (a).) Nevertheless, as evidenced by section 361.5, subdivision (b),[5]the Legislature recognizes that it may be fruitless to provide reunification services under certain circumstances. (Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 750.) Once the juvenile court determines that one of the situations set forth in section 361.5, subdivision (b) is applicable, the general rule favoring reunification is replaced by a legislative assumption that offering [reunification] services would be an unwise use of governmental resources (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478), and the juvenile court lacks power to order reunification unless it makes certain findings. The court shall not order reunification for a parent or guardian described in paragraph  . . . .  (7)  . . . of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child. [] In addition, the court shall not order reunification in any situation described in paragraph (5) of subdivision (b) unless it finds that, based on competent testimony, those services are likely to prevent reabuse or continued neglect of the child or that failure to try reunification will be detrimental to the child because the child is closely and positively attached to that parent. The social worker shall investigate the circumstances leading to the removal of the child and advise the court whether there are circumstances that indicate that reunification is likely to be successful or unsuccessful and whether failure to order reunification is likely to be detrimental to the child. ( 361.5, subd. (c).)

It is undisputed that this family falls within the exception to the general rule regarding reunification services. The juvenile court sustained the section 300 petition pursuant to subdivision (e); A.K. was subjected to severe physical abuse, and C.K. is her sibling. ( 361.5, subds. (b)(5) & (b)(7).) Thus, we must consider whether the juvenile court abused its discretion in ordering reunification services for mother. We conclude that it did. (In re William B. (2008) 163 Cal.App.4th 1220, 1229.)

Regarding reunification services for mother with A.K., the juvenile court was required to find that those services would likely prevent reabuse or that the failure to try reunification would be detrimental to A.K. ( 361.5, subd. (c).) The juvenile court made no such finding, and, in any event, there was no evidence offered to support such a finding. There was no testimony or evidence presented that reunification services were likely to prevent A.K.s reabuse or that mothers failure to reunify would be detrimental to A.K. Rather, as set forth above, the juvenile court seems to have ordered reunification services for mother just because it was ordering them for father.

Mother did offer into evidence a letter from South Bay Center for Counseling, which confirmed her participation in a parent support group. She participated in four out of 25 sessions. While the letter explains topics covered by the program, it does not offer any information pertaining to mothers relationship with A.K., including her acceptance and understanding of what occurred to A.K. and how to prevent such abuse from recurring.

Mother also directs us to counsels representation at trial that she is no longer in a relationship with D.S. The problem, however, is that mother offered no admissible evidence of this fact. And, even if she had, our conclusion would not change. Section 361.5, subdivision (c) provides, in relevant part: The fact that a parent or guardian is no longer living with an individual who severely abused the child may be considered in deciding that reunification services are likely to be successful. While the juvenile court may have considered mothers counsels representation that mother is no longer in a relationship with D.S., there is no indication that the juvenile court considered whether reunification services would be successful.

Finally, mother argues that the juvenile courts order should be affirmed because DCFS failed to meet its investigatory and evidentiary burden pursuant to section 361.5, subdivision (c).[6] Mothers argument is correct, however, it warrants reversal and remand of the matter, not an order affirming the juvenile courts order as mother requests.

Regarding a situation that falls under section 361.5, subdivision (b)(5), section 361.5, subdivision (c) provides, in relevant part: [t]he social worker shall investigate the circumstances leading to the removal of the child and advise the court whether there are circumstances that indicate that reunification is likely to be successful or unsuccessful and whether failure to order reunification is likely to be detrimental to the child. ( 361.5, subd. (c).) This statutory mandate exists so that the juvenile court will be provided with the information it needs to determine whether reunification services should be ordered. (In re Rebekah R. (1994) 27 Cal.App.4th 1638, 16521653.)

As mother points out, DCFS did not investigate the circumstances leading to A.K.s removal and advise the juvenile court whether reunification was likely to be successful or unsuccessful. In its supplemental report prepared for trial, DCFS referred the juvenile court to the jurisdiction/disposition report dated September 17, 2008, regarding DCFSs recommendations. That report sets forth the horrific injuries that A.K. suffered, mothers failure to provide a viable explanation for A.K.s injuries, and DCFSs conclusion that the juvenile court deny mother reunification services. But, the report does not offer any indication as to whether reunification services would be successful. Under these circumstances, we must conclude that DCFS failed to meet its investigatory obligation. (In re Rebekah R., supra, 27 Cal.App.4th at pp. 1653, 16551656; see also Raymond C. v. Superior Court, supra, 55 Cal.App.4th at p. 164 [rejecting a fathers claim that the social worker failed to perform her duty to investigate the likelihood of successful reunification because the social worker provided the juvenile court with ample evidence on the issue].)

Because DCFS did not conduct the proper investigation, the matter must be remanded to the juvenile court. The juvenile court should hold a hearing, after [DCFS] has had sufficient time to conduct a full investigation in accord with the dictates of section 361.5, subdivision (c), to determine whether reunification is likely to be successful or unsuccessful and, in particular, whether [mother] could, with proper help, achieve a level of insight sufficient to enable [her] to prevent [A.K.s] reabuse and a level of proficiency sufficient to enable [her] to competently care for [her] daughter. Whether the court orders services will depend upon the courts assessment of the evidence presented at the hearing. [Citation.] (In re Rebekah R., supra, 27 Cal.App.4th at p. 1656.)

Regarding reunification services for mother and C.K., the juvenile court was required to find, by clear and convincing evidence, that reunification was in C.K.s best interest. ( 361.5, subd. (c).) Although the juvenile court stated, almost in passing, that it was in the childrens best interest for mother to receive reunification services,[7]again, there was no evidence to support such a finding.

In urging us to affirm, mother points to comments made by the childrens attorney. Sheila Youngberg (Youngberg), in her role as the childrens CAPTA guardian ad litem, stated to the juvenile court: [I]t would be detrimental to both children if their mother were not offered family reunification services. Both children have indicated that they love their mother very much, that they miss her. Theyve both indicated that they would like to return to her care. [] [T]he children ask for their mother all the time, . . . they want more visits with her, and . . . the mother has been a good mother overall to the children.

Youngbergs comments are argument, not evidence. While they may be entitled to great weight, they cannot replace the statutory requirement of clear and convincing evidence. ( 361.5, subd. (c); see also In re Heather H. (1988) 200 Cal.App.3d 91, 9596.) To the extent the juvenile court relied upon Youngbergs argument and the typical C.L.C. line, the juvenile court improperly focused on the childrens love for their mother rather than any realistic chance they would find permanency and stability with her. (In re William B., supra, 163 Cal.App.4th at p. 1223.)

Mother also asks us to consider the juvenile courts finding made at the March 25, 2009, hearing that she has complied with her case plan as evidence that reunification is in the childrens best interest. We decline to do so. (In re Josiah Z. (2005) 36 Cal.4th 664, 676.)

DISPOSITION

The juvenile courts November 13, 2008, order granting mother reunification services is reversed. The matter is remanded to the juvenile court.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

_____________________, J.

ASHMANN-GERST

We concur:

_____________________, Acting P. J.

DOI TODD

_____________________, J.

CHAVEZ

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

[2] We recognize the unusual result in this appeal, namely an outright reversal regarding C.K. yet remanding the matter regarding A.K. But our conclusion is mandated by the statutory requirements discussed below. Given the procedural posture of the case upon remand, mother is free to pursue legal remedies, such as a section 388 modification petition, if appropriate.

[3] A.K.s father is J.K. He is not a party to this appeal.

[4] We hereby grant mothers request for judicial notice of the juvenile courts March 25, 2009, minute order.

[5] Section 361.5, subdivision (b) provides, in relevant 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: [] . . .  [] (5) That 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. [] . . .  [] (7) That the parent is not receiving reunification services for a sibling . . . of the child pursuant to paragraph . . . (5).

[6] The parties fail to discuss the fact that the social workers investigation applies only to A.K. ( 361.5, subd. (c).)

[7] In fact, even while ordering reunification services for mother, the juvenile court noted that it was sicken[ed] by what mother allowed to occur.