In re I.S.
Filed 7/25/13 In re I.S. CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
In re I.S., a Person Coming
Under the Juvenile Court Law.
Z.S.,
Petitioner,
v.
THE
SUPERIOR COURT OF ALAMEDA COUNTY,
Respondent;
ALAMEDA COUNTY SOCIAL SERVICES
AGENCY,
Real
Party in Interest.
A138031
(Alameda County
Super. Ct. No. OJ12018181)
INTRODUCTION
Z.S.
(mother) seeks review by extraordinary
writ of a juvenile court order setting
a hearing, pursuant to Welfare and Institutions Code section 366.26,
make a permanent plan for mother’s son, I.S., who is now a three-year-old. Mother contends the
jurisdictional finding that mother committed a deliberate act of cruelty toward
I.S.; (2) denying mother reunification services; and (3) denying a relative
placement for I.S. with his maternal grandmother. We reject these contentions and deny the writ
on the merits.
II. STATEMENT OF FACTS
On January 4,
2012, the Alameda
County Social Services Agency (the Agency) filed a juvenile dependency
petition alleging that I.S. came within the juvenile court’s jurisdiction
pursuant to the provisions of section 300, subdivisions (b) (failure to
protect), (g) (no provision for support), and (i) (act or acts of
cruelty). The petition was supported by
allegations that mother suffers from mental illness, that she had not been consistent
in obtaining treatment or taking medication to control her
health issues directly impair her ability to care for I.S. The Agency also alleged that I.S. had been
subjected to an act of cruelty by mother.
The
cruelty allegation pertained to an injury discovered by the maternal aunt
(aunt) on December 31, 2011. While
caring for I.S. in her home, aunt discovered that the 21-month-old toddler had
crisscross-patterned burn marks and blisters on the bottom of both of his
feet. When aunt asked mother what
happened, mother said that she had been holding the child up in the air by a
wall heater when flames from the heater burned his feet. After aunt discovered the burns, she
contacted the police, who took I.S. into protective custody. I.S. was treated at Children’s Hospital and
then placed in foster care.
An
Agency social worker who spoke with mother on December 31 reported that mother
stated that she noticed the burns on Christmas day but claimed she did not know
how they happened. In response to
questions about how she disciplined her child, mother reported that she spanks
him or stops him from doing things by holding his shoulders. The Agency had received prior referrals about
mother all relating to her non-compliance in addressing her mental health. When the social worker raised that subject,
mother acknowledged she had not seen her psychiatrist for “a long time,†and
that she was not taking her medication.
The social worker reported that talking with mother was like talking to
a child; she was unemotional, detached from I.S., and it was not clear that she
understood her situation.
The
identity of I.S.’s father was unknown.
Mother was pregnant with a second child by a different known father and
was due in February. Aunt and other
family members who talked with the social worker were afraid of mother’s
violent temper and were unwilling to take I.S. into their homes. They believed the burns could have been the
result of mother disciplining I.S. They
reported that mother was not bonded with I.S., and that she disciplined him in
a harsh manner. She frequently hit the
child and once hit him so hard that he fell across the floor. Aunt also reported that mother has a history
of drug abuse which exacerbated her
According
to the family, the maternal grandmother, R.S., was I.S.’s primary caretaker,
and mother had been violent with her as well.
At the time the incident occurred, R.S. was in Fiji and was not expected
back until January 12, 2012. R.S., who
was recovering from cancer, had tried to take I.S. with her on the trip, but
mother took the child’s passport and would not let him go. Therefore, various family members had agreed
to check in on mother and I.S. during the two-month period while R.S. was away
and to give them money if necessary.
The
juvenile court issued a detention order on January 5 and scheduled a
jurisdiction hearing for January 19, 2012.
B. The January 2012 jurisdiction hearing
When
the jurisdiction report was filed, mother, whose family is from Fiji, was 20
years old and 35 weeks pregnant with a second child. R.S., the maternal grandmother, was the
primary caretaker of both mother and I.S., although she had been away in Fiji
when the December 2011 incident occurred.
R.S. had been diagnosed with cancer, received chemotherapy and was in
remission. Aunt was married, had a young
daughter, was four months pregnant and did not have a good relationship with
mother and was not willing to take I.S. into her home.
The
Agency’s child welfare history with this family dated back to when mother was a
minor and the subject of both family reunification and family maintenance
plans. As for I.S., the Agency had received
prior reports of emotional abuse and general neglect by mother which reflect
that mother’s mental health issues had raised ongoing concerns about the
child’s well being. Mother had been
hospitalized more than once for those problems, she had been placed under a
temporary conservatorship during the time she was pregnant with I.S., and there
were indications that she was not following through with her treatments. These prior referrals were closed based in
part on representations that R.S., the maternal grandmother, was assisting
mother in caring for I.S.
On
January 5, 2012, the Agency received an update about I.S. from Liz Thornton, a
clinical social worker at Children’s Hospital.
Thornton told the social worker that I.S. must have been held down while
on top of a floor furnace. Thornton also
reported that a Dr. Crawford had performed a full medical exam which did not
disclose any injuries other than the burns on the baby’s feet. Dr. Crawford opined that the burns occurred
two weeks prior.
On
January 12, 2012, the Agency conducted a team decision making meeting. When the meeting was scheduled, mother had
not returned phone messages from the Agency social worker or called to inquire
about her son, and R.S. had not yet returned from her trip. Therefore, the social worker told aunt that
it was imperative that mother attend this meeting. Aunt and R.S. went to the meeting but mother
refused to attend. R.S. stated that she
could not force her daughter to come and she also stated that she could not kick
mother out of her home because she was pregnant, mentally ill and had no where
else to go. During the meeting, R.S.
acknowledged that mother was violent toward her and that she was reluctant to
call the police when that happened. The
Agency took the position that it could not place I.S. with R.S. because mother
was living in her home.
In
its jurisdiction report, the Agency recommended that I.S. be declared a
dependent and that reunification services be denied. The Agency listed several factors supporting
the decision not to recommend reunification services to mother: the severity of the injury to I.S.; mother’s
failure to bond with her child, including her failure to inquire about his
status or attempt to visit him after he was detained; mother’s life long
serious mental illness, including her need for life long treatment and her
pattern of failing to participate in treatment; and signs that mother also
suffered a very significant developmental delay. The Agency opined that, in light of these
serious issues, it was unlikely that mother was capable of making the
sustainable change needed to reunify with I.S.
At
a January 19, 2012, hearing, mother contested jurisdiction and the denial of
services. The matter was continued until
March 20 because mother was expecting a baby soon and the court wanted to
ensure a safe delivery. In the meantime,
the court ordered supervised visits with mother and gave the Agency discretion
to place I.S. with R.S.
C. Status Reports and Interim Hearings
In
February 2012, mother delivered a baby boy, which prompted another Agency
referral of general neglect because of mother’s mental health status and her
refusal to take her medication. She was
confused about what was going on, did not bond with the baby, and appeared
content to let the father take responsibility for the baby’s care. When asked about I.S., mother reported that
he was taken away from her because of “speech problems,†that he was born with
marks on his feet, and that she did not know why his feet hurt him or how he
got burned. Mother had attended two
supervised visits with I.S., one before and one after she delivered her
baby. During both visits, mother was
prompted to engage with I.S., but she spent most of the time sitting while I.S.
played alone. R.S. accompanied mother to
the visits and also visited with I.S. on the days mother failed to attend.
During
a March 2012, home visit, R.S. appeared overwhelmed. Mother showed the social worker photos of her
new baby but spent most of the visit lying down on a bed while R.S. spoke to
the social worker. Mother did not appear
to understand what was going on and, at one point, began sucking her
thumb. R.S. shared that they planned to
go visit the new baby for the first time since he was born. She also told the social worker that mother
had not wanted to be with the father of that baby since an incident when he hit
her. The father had apologized, but R.S.
was unsure of the extent of the domestic violence in the relationship.
In
March 2012, the Agency provided the court with copies of the police report and
medical records relating to the December 2011 incident. Aunt told police that she noticed the burns
on December 31, while she was caring for I.S. at her home. She called mother and asked what
happened. First, mother said I.S. burned
his feet while walking on the carpet.
When aunt said that was not possible, mother said she had held his feet
close to the heater and a flame “shot out and burned his feet.†The police officer then contacted mother who
appeared to have trouble understanding basic questions, but was eventually able
to report that the “bumps†on the child’s feet had happened while they were
staying at a neighbor’s home. The
officer interviewed the neighbor, Patricia N., who reported that mother and I.S.
stayed at her home on December 25 and 26.
When asked about the burns, the neighbor replied that they “probably
happened on my heater vent, all my kids have burned their feet on it.†The officer asked mother how the burns
happened and mother suggested that I.S. had been drinking cranberry juice which
could have caused his feet to be more sensitive to heat. Mother told police that she noticed the burns
on December 26 and that she obtained medical treatment for I.S. at West
Berkeley Clinic and Children’s Hospital in Oakland.
After
reviewing the police report, the Agency social worker contacted the West
Berkeley Clinic and Children’s Hospital and was advised that neither had a
record of a visit to obtain treatment for I.S.’s burned feet. Medical records from Dr. Crawford’s January 5
examination reflected that I.S.’s burn marks were a grid pattern with a single
clear imprint on the sole of each foot, that the burns were “contact†burns,
and that the burn on the right foot was more severe than the left. There was no evidence of any “acute or
healing fracture[s].â€
On
March 20, 2012, the juvenile court appointed a guardian ad litem to represent
mother, and continued the matter until April so that mother could undergo a
psychological evaluation.
In
April, the Agency reported that it had obtained psychiatric records for mother
which documented 17 hospitalization episodes from 2005 to 2009. Mother had attended only three visits since
February 27. R.S. would prompt mother to
interact with I.S., but she did not engage with the child. The Agency had assigned a social worker to
work with the family to explore and evaluate possible placements with relatives
and non-related extended family.
On
April 17, 2012, the court ordered the Agency to make referrals so mother could
have a psychological and medical evaluation.
R.S. made a request for de facto parent status, which the court took
under submission and subsequently denied.
The contested hearing was continued until May 2012.
D. The Contested Jurisdiction/Disposition Hearing
The
contested hearing finally commenced on May 18, 2012. The presentation of testimony consumed
several court days spread out over a more than six-month period, which
necessitated the filing of numerous Agency reports as events continued to
unfold.
In
May 2012, the Agency reported that mother had been attending visits with I.S.
and that there were some positive interactions.
However, mother failed to attend her scheduled appointment for a psychological
evaluation and the evaluator, Dr. Lebeck, reported that she had concerns about
R.S.’s mental health. Apparently, R.S.
had scheduled the appointment for mother and then attended the meeting without
her. Lebeck got the impression that R.S.
was trying to hide her daughter. The
Agency reported that the psychological evaluation was rescheduled and that the
social worker would transport mother to ensure compliance.
In
the meantime, the social worker contacted several community organizations
regarding services that were available to mother. Stars Community Services had provided
services in the past and mother was still eligible for services because she was
under 21, but her case had been closed due to lack of participation. The contact person at that agency reported
that mother had received support from many service providers in the past, but
that she lacked the ability to work with those providers. The Agency social worker reported that she
would attempt to assist mother in accessing the services that were available to
her.
On
May 16, 2012, the Agency followed up with Dr. Crawford who felt he did not have
enough information to determine what actually happened in December 2011. But he did state that someone had to have
known about the injury when it occurred.
He also said that it was possible I.S. would have a permanent scar on
the bottom of one foot.
On
May 16, the Agency also submitted a “Family Finding & Engagement
Memorandum†in anticipation of the contested hearing. In that memorandum, the Agency social worker
documented extensive efforts to locate a relative placement for I.S. Although the social worker had contacted more
than 15 family and non-family members, the only people who could potentially
take the child lived outside the country.
The social worker reported that mother did not understand why I.S. could
not be returned to her and that R.S. became extremely distressed by discussions
regarding placing I.S. with somebody other than her.
When
the contested hearing finally commenced on May 18, the County’s first witness
was aunt. Aunt testified that R.S. went
to Fiji in November 2011, for vacation, to visit relatives and to have some
time to relax because she had been recovering from cancer and had also been taking
care of mother and I.S. Aunt agreed to
check on mother on a weekly basis while R.S. was away. During that time period, aunt was concerned
about mother, who was not taking her medication and did not appear to be
capable of taking care of I.S. In late
December, aunt also became concerned about I.S. who was not acting like
himself; he was “very weary, droopy eyes, and he was just not himself.â€
On
December 30, 2011, aunt brought I.S. to her home, to spend the night with
her. That evening, I.S. was “out of it,â€
could not play, and just did not seem to be himself. As he started to eat dinner, he began to
shake and then proceeded to eat several helpings as if he was starving. After dinner, she gave him some toys, but
I.S. was not able to play so she gave him a bottle and put him to bed. The next morning, aunt discovered the burns
while she was changing I.S.’s diaper.
She called mother, who told her that she lifted I.S. up to warm him and
that the heater threw a flame and burned his feet. Mother also said that she did not take I.S.
to the doctor to treat the burns. Aunt
testified that, after she discovered the burns, she did not put socks on the
baby because she believed that the blisters should be exposed. However, I.S. found it too painful to walk
without his socks on.
During
her testimony, aunt acknowledged that mother was physically and verbally
“rough†with I.S. She opined that mother
loved her child but that she “just needs help†from her own mother to care for
him, and that she also needs to be on her medication. Aunt admitted that mother cannot be left
alone with I.S. She also testified that
she was not willing to allow mother to live with her in her home because mother
was not stable when she went off her medication and because aunt did not trust
mother to be around aunt’s nine-year-old daughter.
Patricia
N. also testified at the May 18 hearing.
Patricia N. testified that she was a neighbor of R.S. and had agreed to
look in on mother while R.S. was away in Fiji.
Mother and I.S. stayed at her home for a few days over the Christmas
holiday. Patricia N. testified that it
did not appear to her that I.S. was having any problems during that visit other
than the “regular stuff.†She recalled
that he was very cranky, that he was “teething really bad,†and that he may
have had a cold. While mother and I.S.
stayed at her house, Patricia N. was not at home “24/7.†When she was at home, she generally stayed
upstairs in her bedroom with the door closed where she could not hear what
mother and I.S. were doing downstairs.
Patricia
N. testified that there are two floor heaters in her home and one is located in
the bedroom where mother and I.S. stayed.
Patricia N. acknowledged that she told the police that all of her kids
had burned their feet on the heaters.
But she also testified that nobody in her family had ever burned
themselves so seriously that they blistered, scared, or required any medical
attention.
The
County’s final witness was R.S., who began her testimony at the May 18
hearing. Much of her testimony that day
was confusing if not contradictory and, during the course of her testimony, a
concern arose about whether she needed an interpreter. Although the court considered striking that
entire day of testimony, it did not actually do so. In any event, on that first day of testimony,
R.S. did clearly convey that she wanted I.S. to be placed in her home. But she also acknowledged that the Agency had
made it clear that could not happen while mother was living there. R.S. testified that she was having problems
finding somewhere else for mother to go.
On
June 13, R.S. resumed her testimony with the assistance of an interpreter. R.S. testified that she was in Fiji from
November 22, 2011, until January 10, 2012, and that she made the trip so that
she could receive “healing prayer,†baptism, and treatment for her cancer. R.S. did not worry about leaving I.S. with
mother because her neighbor Patricia agreed that they could stay with her for
the entire two months that R.S. planned to be away and aunt had also agreed to
visit with them while she was gone.
R.S.
denied that she had been I.S.’s primary caretaker prior to his removal,
claiming that she and mother always shared that responsibility. R.S. also testified that she did not have
concerns about mother’s ability to parent I.S. and claimed that she had no
knowledge about the status of mother’s mental health. R.S. admitted that mother had been to the
hospital many times, but she testified that nobody informed her about her
daughter’s mental illness.
R.S.
admitted that mother had been violent with her on one or two occasions but she
could not provide any clear testimony about the incidents. She testified that mother never hit I.S. in
her presence, but then stated that mother spanked the child for
misbehavior. Later in her testimony,
R.S. admitted that she had called the police the previous week. Mother had been in an angry mood, and threw a
metal can at R.S., yelled at her and told her to get out of the house. R.S. called the police because she was very
afraid.
R.S.
continued her testimony on August 21.
She testified that the reason she had wanted to take I.S. to Fiji with
her was because he is her grandson and she is attached to him. R.S. explained that she thought it was fine
that mother wanted I.S. to stay with her, but she warned mother it would be
hard to take care of him when she was pregnant and feeling sick. R.S. testified that, when she left I.S. with
mother, she “had no idea†that mother was mentally ill and she believed mother
was capable of taking care of I.S. by herself.
R.S.
testified that she did not discover that mother was mentally ill until she
returned from Fiji, at which point I.S. had already been removed from the
home. R.S. also testified that mother
had now been on medication for a few months and that R.S. made sure she took it
on time. According to R.S., mother was more
calm, was going to her appointments and was thinking about going to school. Finally, R.S. testified that mother was now
actively looking for an apartment so that she could move out of R.S.’s home.
Between
late June and late October 2012, mother attended approximately half of the
scheduled weekly visits with I.S., and she only attended one visit without
being accompanied by her own mother. The
social workers who supervised the visits reported that, although mother had
become more animated and engaged since she resumed her medications, “it is
apparent that she does not have the necessary skills to care for her son
without constant prompting and redirecting.â€
During this period, mother completed her psychological evaluation. On October 1, the Agency submitted the report
under separate confidential cover to the court and the attorneys in this case.
On
October 11, 2012, the Agency conducted a team decision meeting where it decided
to pursue a concurrent home placement for I.S. because efforts to find a
relative placement had been exhausted.
Mother and R.S. had been invited to this meeting and were offered
transportation. But R.S. was adamant
that neither would attend because they did not agree with the Agency’s decision
to consider a concurrent home placement plan.
On
October 12, 2012, mother left a message for the Agency social worker that she
had moved out of R.S.’s home and was living with her “baby daddy.†When the social worker called mother back a
few days later, she said she was living with a “friend,†but she was not able
or willing to provide an address. A few
days later, on October 16, the Agency received a placement referral on behalf
of R.S., who requested that I.S. be placed in her home now that mother was no
longer living there. However, the Agency
did not make that placement because of ongoing concerns about R.S.’s ability to
protect I.S. from mother and because of R.S.’s own health problems.
At
an October 22 supervised visit that mother failed to attend, R.S. told the
social worker that mother was sick, but that she could not provide any details
about mother’s health because she had moved out and was now living with her
boyfriend. On October 25, the social
worker made an unscheduled visit to the home of the father of mother’s second
child. The baby’s paternal grandfather
said that mother did not live there and was not allowed to be alone with that
child.
On
November 19, mother accepted a ride home from the Agency social worker. The social worker was able to confirm that
mother was renting a room in Alameda for $500 a month from a woman who lived in
the home with her three children.
However, the woman retreated to her room and the social worker was
unable to obtain pertinent information about the terms of the rental arrangement.
In
November and the first half of December, mother and R.S. regularly attended
visits although they were sometimes late.
With the exception of one visit, when mother was visibly unwell, there
were indications that mother had become more focused and would engage with I.S.
for short periods of time. The
supervising social worker reported that I.S. never displayed separation anxiety
at the end of visits; he was always ready to leave when the social worker
indicated it was time to clean up.
When
the contested hearing continued on December
14, 2012, mother recalled R.S. to the witness stand in order to rebut the
Agency’s contention that R.S. could not adequately protect I.S.
R.S.
testified that mother had moved out of her home two months earlier and that she
would not allow mother to move back in if I.S. was placed with her. R.S. stated that she did not think that she
would allow mother to have unsupervised contact with I.S. She testified that it would be better for the
Agency to supervise visits between mother and I.S. R.S. also acknowledged that she had made a
mistake by leaving I.S. with mother when she went to Fiji.
While
testifying under cross examination, R.S. was asked several times why it was a
mistake to leave I.S. with mother.
Despite assistance by an interpreter, R.S. failed to give a coherent
answer to this question, although she repeatedly stated that mother refused to
give permission for the child to go to Fiji.
When asked why she thought it would be better for the Agency to
supervise visits between I.S. and mother, R.S. responded “I don’t think any
untoward things should happen,†and, if the social worker came to her house,
then everything that happened would “be in the presence of the social
worker.†R.S. proceeded to testify,
however, that she would not have any concerns about mother visiting I.S.
without supervision and that she believed that I.S. would be safe having
unsupervised contact with mother.
On
redirect, R.S. was asked to clarify whether she would allow unsupervised
contact and gave this response: “She’s
my daughter, and she’s always my daughter, so whatever the social worker tell
us, I will do accordingly.†R.S.
testified that she would abide by the court rules. When asked what she would do if mother
violated a court order to stay away from I.S., R.S. testified that “if she
beats [him] I will have to call the police.â€
5. The
February 7, 2013, Hearing
The
Agency reported that mother and R.S. both regularly attended supervised visits
in December and January. R.S. typically
brought food and fed both mother and I.S.
Although R.S. and mother usually spoke in their native language, it
appeared to the supervising social worker that R.S. used these sessions to
check in with mother, and make sure she was eating. R.S. would then prompt mother to assist her
by cleaning up after they ate. Although
mother continued to play by herself during these sessions, she could also be
prompted to try to engage with I.S.
In
January 2013, mother’s psychiatrist, Dr. Kayman, provided the Agency with a
status update. Kayman reported that he
had three sessions with mother in the past six months, that mother had failed
to attend one scheduled appointment, and that he always ensured she had several
refills on her medication because she tended to miss appointments. Kayman also reported that mother was not
currently participating in counseling and that she had a long history of
conflict with R.S. Kayman offered the
opinion that mother’s level of functioning improved considerably when she was
on her medication, but that she would not ever be capable of living
independently.
The
final witness who testified at the contested hearing was the Agency social
worker, Martha Suarez, who was called by mother to address the Agency’s placement
decision. Suarez began her testimony at
the December 2012 hearing and completed it on February 7, 2013.
Suarez
testified that, although mother was no longer living in R.S.’s home, the Agency
remained concerned that R.S. would not be able to protect I.S. from
mother. Over the course of her
testimony, Suarez identified several reasons for this concern. For example, R.S. had made statements in the
past to the effect that she could give I.S. back to mother after the Agency was
no longer involved in their life.
Further, it appeared to the social worker that R.S. herself had some
cognitive problems; she had difficulty processing information and did not
always understand the issue at hand. In
addition, the Agency was concerned that mother’s housing situation was not
stable and that if she became homeless, R.S. would take her in. This concern was reinforced by the assessment
of mother’s psychiatrist that mother was not capable of living independently.
E. The Juvenile Court Findings and Orders
On
March 1, 2013, the court found that the allegations in the petition were true,
declared I.S. a dependant of the juvenile court, denied services to mother, and
set the matter for a section 366.26 hearing.
The court also affirmed the Agency decision not to place I.S. in the
home of R.S.
In
explaining these rulings, the court stated that this was a very sad case and
that it was hard for the court to believe that this young mother who has severe
mental health issues would “maliciously†harm her child. Nevertheless, the evidence established that
the serious injuries that I.S. suffered were caused by mother’s deliberate
act. In this regard, the court observed
that mother had changed her story several times but that, at the time of the
incident, she told her own sister that she was warming I.S.’s feet when he was
burned by the heater. Ultimately, the
court made express findings that mother deliberately burned the baby’s feet and
then failed to seek medical attention for him; that mother had made minimal
progress toward alleviating or mitigating the causes of the dependency; and
that I.S. would not benefit from services to mother because mother was not his
primary caretaker and because she had not bonded with him.
In
denying mother’s request to place I.S. with R.S., the court candidly
acknowledged that, throughout the lengthy proceeding, the court had hoped that
a placement with the maternal grandmother would be possible. Ultimately, though, the court found that
“[a]ll the various elements are here†to support the Agency’s placement
decision. The court observed, among
other things, that R.S. was “in denial†about mother’s mental illness, that if
mother needed housing, R.S. would likely take her in, and that a placement with
R.S. posed a safety risk to I.S.
DISCUSSION
A. The Section 300, subdivision (i) Jurisdictional Finding
Mother
contends the juvenile court erred by finding that I.S. comes within the court’s
jurisdiction under section 300, subdivision (i) (section 300(i)), which applies
when a child has been subjected to an act or acts of cruelty. “We review the juvenile court’s
jurisdictional findings for sufficiency of the evidence. [Citations.]
We review the record to determine whether there is any substantial
evidence to support the juvenile court’s conclusions, and we resolve all
conflicts and make all reasonable inferences from the evidence to uphold the
court’s orders, if possible.
[Citation.]†(
822, 828.)
Section
300(i) states that a child comes within the jurisdiction of the juvenile court
and can be adjudged a dependent child if:
“The child has been subjected to an act or acts of cruelty by the parent
or guardian or a member of his or her household, or the parent or guardian has
failed to adequately protect the child from an act or acts of cruelty when the
parent or guardian knew or reasonably should have known that the child was in
danger of being subjected to an act or acts of cruelty.â€
Section
300(i) applies in two distinct situations.
“The first is where the parent, guardian, or member of the household has
directly subjected the child to an act or acts of cruelty. The second is where the parent or guardian
has failed to protect the child from acts of cruelty by others.†(In re
D.C. (2011) 195 Cal.App.4th 1010, 1015.)
In the present case, we address the direct-infliction prong of section
300(i); the juvenile court found that mother committed an act of cruelty by
burning I.S.’s feet on the heater and then failing to secure medical treatment
for those burns. On appeal, mother
contends this finding cannot be sustained because there is no competent
evidence that the burns were the result of mother’s intentional act.
To
properly exercise jurisdiction under the direct infliction prong of section
300(i), the juvenile court was not required to find that mother intended to
injure I.S., but it was required to find that she intended to commit the act
which constitutes cruelty within the meaning of the statute. (In re
D.C., supra, 195 Cal.App.4th at p. 1017.)
In this context, courts have defined acts of cruelty as “intentional
acts that directly and needlessly inflict extreme pain or distress.†(Ibid.) Thus, the juvenile court must find that the
parent intended to commit the act.
However, “[w]hether the act is an ‘act of cruelty’ is a factual question
that does not require a finding that the parent specifically intended to cause
harm.†(Id. at p. 1018.) As the
court explained in In re D.C., supra,
“[t]he overarching goal of dependency proceedings is to safeguard the welfare
of the children involved†and “it would be illogical to require proof that a
parent who directly subjected the child to a cruel act did so with the specific
intent to harm. Rather, it is enough that
the parent intended to perform the act.â€
(Id. at pp. 1015-1016.)
Here,
the juvenile court found that mother deliberately held I.S.’s feet against the
heater vent. This finding is supported
by substantial evidence. First, when
aunt confronted mother about the burns, mother said that she had held the
child’s feet to the heater vent. Second,
when the police questioned mother, she reported that the injury occurred while
they were staying at Patricia N.’s house, where police found a heater grate
that matched the marks on the child’s feet.
Third, mother falsely reported that she had sought medical attention for
the injury. In addition to these circumstances, there is
substantial evidence that mother has a history of violent behavior which she
had directed at I.S. and that she used harsh measures to discipline him. Finally, nobody disputes that mother suffers
from a very serious mental illness.
Taken together, this evidence substantially supports the finding that
mother deliberately held her son’s feet to the heater vent.
B. The Section 361.5, subdivision (b)(6) By-Pass Finding
Mother
challenges the sufficiency of the evidence to support the order denying her
reunification services. “We review an
order denying reunification services by determining if substantial evidence
supports it. [Citations.] In so doing, we resolve all conflicts in the
evidence in favor of the juvenile court’s finding. [Citation.]â€
(In re Gabriel K. (2012) 203
Cal.App.4th 188, 196.)
In
the present case, mother was denied reunification services pursuant to section
361.5, subdivision (b)(6) (section 361.5(b)(6)), which states in relevant
part: “(b) 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: . . . (6) That the child has been adjudicated a
dependent pursuant to any subdivision of Section 300 as a result
of . . . the infliction of severe physical harm to the
child . . . by a parent or guardian, as defined in this
subdivision, and the court makes a factual finding that it would not benefit
the child to pursue reunification services with the offending parent or
guardian.â€
On
appeal, mother contends this by-pass provision does not apply to her because
(1) she did not inflict serious physical harm on I.S., and (2) I.S. would
benefit from the provision of reunification services to mother. We will separately address these two
contentions.
In
the present case, the juvenile court found that mother inflicted serious
physical harm on I.S. by deliberately holding his feet to the heater and then
failing to seek medical attention for the injuries. Section 361.5(b)(6) expressly states that a
“finding of the infliction of severe physical harm . . . may be
based on . . . deliberate and serious injury inflicted to or on
a child’s body . . . by an act or omission of the
parent . . . .†In
challenging the court’s finding under this provision, mother does not dispute
that the burns were a serious injury, but she does maintain that there is no
evidence she deliberately held the child’s feet to the heater. We have already rejected that
contention. Mother also contends that
her failure to seek medical attention for I.S. is irrelevant because there is
no evidence that her inaction caused I.S. any harm. To support this argument, mother relies on
Cal.App.4th 292 (Pablo S.).
In
Pablo S., supra, 98 Cal.App.4th 292,
a six-year-old boy broke his leg when he fell off a scooter. For almost two months, the parents did not
seek medical treatment for the injury notwithstanding that the boy could not
walk and he had to use his arms to pull himself across the floor. The “leg healed in a rotated position,
shorter than the other leg, and would not support the child’s weight.†(Id.
at p. 294.) Eventually, a neighbor who
had heard the child cry and scream “ ‘on and off every other day for about
two months,’ †took the boy and his grandmother to the hospital so they
could obtain medical treatment for the boy’s injury. (Ibid.) The Pablo
S. court affirmed a juvenile court order denying the parents reunification
services, finding that “the parents’ failure to provide medical attention
constituted the infliction of serious injury by omission.†(Id.
at p. 301.) In reaching this conclusion,
the court rejected the parents’ various excuses for their failure to act and
found that their neglect caused the child to suffer unreasonably and
unnecessarily.
Mother
contends that Pablo S. establishes
that a parent’s failure to seek medical attention for his or her child will
support a finding of “severe physical harm†under section 361.5(b)(6) “only
where the failure to seek medical treatment in and of itself causes serious
injury.†If, by this argument, mother is
suggesting that evidence of a parent’s failure to seek medication treatment for
a child’s injury is irrelevant unless
that inaction is an independent cause of harm, we disagree with her
interpretation of Pablo S. The parents in that case did not cause the
child’s broken leg and, therefore, the question before the court was whether
the parents’ subsequent inaction could—by itself—support a finding of severe
physical harm. By answering that
question in the affirmative, the court did not hold or in any way intimate that
a parent’s inaction following a child’s injury is only relevant if that
source of serious physical harm.
In
the present case, we have already affirmed the lower court’s finding that mother
deliberately held her child’s feet to the heater vent. That finding was further supported by
undisputed evidence that mother failed to seek medical treatment for her son’s
burned feet and that she subsequently lied to the police by telling them she
had secured that treatment. Furthermore,
there is substantial evidence that I.S. suffered unnecessarily for several days
before his injury was discovered. For
example, Patricia N. testified that I.S. was cranky and irritable when he
stayed at her house. Aunt testified that
before she discovered the burns she noticed that I.S. was not acting like
himself, that he was not walking, that he appeared weary and that he ate like
he was starving. Furthermore, after aunt
discovered the burns, she observed that it was too painful for I.S. to walk
without his socks on. All of this
evidence, taken together, supports the juvenile court’s finding that mother
inflicted “severe physical harm†within the meaning of section 361.5(b)(6).
Mother
contends that, even if the finding of severe physical harm is supported by
substantial evidence, the finding that I.S. would not benefit from
reunification services is not. Again, we
disagree. The record contains
substantial evidence that mother’s severe mental health problems and cognitive
issues precluded her from bonding with either of her children. These same problems have also rendered mother
incapable of living independently and meeting her own needs, not to mention the
needs of I.S. This evidence supports the
trial court’s finding that I.S. would not benefit from services to mother
because he had never bonded with mother and she had never been his primary
caretaker.
On
appeal, mother contends that the finding I.S. would not benefit from services
must be reversed because the trial court failed to consider the factors set
forth in section 361.5, subdivision (i) (section 361.5(i)), which states:
“In determining whether
reunification services will benefit the child pursuant to paragraph (6) or (7)
of subdivision (b), the court shall consider any information it deems relevant,
including the following factors:
[¶] (1) The specific act or omission comprising the severe sexual
abuse or the severe physical harm inflicted on the child or the child’s sibling
or half sibling. [¶] (2) The circumstances under which the abuse or harm
was inflicted on the child or the child’s sibling or half sibling. [¶] (3)
The severity of the emotional trauma suffered by the child or the child’s
sibling or half sibling. [¶] (4) Any history of abuse of other children by
the offending parent or guardian. [¶] (5) The likelihood that the child
may be safely returned to the care of the offending parent or guardian within
12 months with no continuing supervision. [¶] (6) Whether or not the child
desires to be reunified with the offending parent or guardian.â€
Mother
misconstrues section 361.5(i) to the extent she believes it limits the
information that the court may consider when assessing whether services will
benefit a dependent child in this context.
As reflected above, the statutory language expressly directs the court
to consider “any information it deems relevant.†And, contrary to mother’s contentions on
appeal, nothing in this statute requires the court to make express findings on
each of the enumerated factors.
Furthermore,
several of the factors listed above provide additional support for the trial
court’s finding. For example, the
circumstances under which the harm was inflicted on I.S. (§ 361.5(i)(2))
are indicative of mother’s mental health problems and other limitations which
preclude her from bonding with and appropriately caring for her child. Furthermore, in light of mother’s impairment
and other issues, it is virtually inconceivable that I.S. can be safely
returned to her within 12 months with no continuing supervision. (§ 361.5(i)(5).)
The
record before us substantially supports the juvenile court’s findings that
mother inflicted severe physical harm on I.S. and that I.S. would not benefit
from the provision of reunification services to mother. Therefore, the court did not err by denying
mother reunification services in this case.
C. The Placement Decision
Mother
contends that the juvenile court erred by refusing to order the Agency to place
I.S. in R.S.’s home. We review a custody
placement order under the abuse of discretion standard of review. (Alicia
B. v. Superior Court (2004) 116 Cal.App.4th 856, 863 (Alicia B.).) “ ‘Broad
deference must be shown to the trial judge.
The reviewing court should interfere only “ ‘if we find that under all
the evidence, viewed most favorably in support of the trial court’s action, no
judge could reasonably have made the order that he did.’ [Citations.]â€
[Citation.]’ [Citation.]†(Ibid;
See also In re Robert L. (1993) 21
Cal.App.4th 1057, 1067.)
“When
a child is removed from his or her parents’ custody under section 361, the
juvenile court places the care, custody, control, and conduct of the child
under the social worker’s supervision.
(§ 361.2, subd. (e).) The social
worker may place the child in several locations, including the approved home of
a relative. (§ 361.2, subd.
(e)(1)–(8).) Relatives who request
placement of a dependent child are given preferential consideration. (§ 361.3, subd. (a).)†(Alicia
B., supra, 116 Cal.App.4th at p. 862.)
When
a relative steps forward to request placement, the court and the Agency should
consider the factors set forth in section 361.3, subdivision (a). “The linchpin of a section 361.3 analysis is
whether placement with a relative is in the best interests of the minor. [Citation.]â€
(Alicia B., supra, 116
Cal.App.4th at p. 862; see also § 361.3, subd. (a).) Additional relevant factors include the
wishes of the parent; the moral character of the relative and any other adult
living in the home; the nature of the relative’s relationship with the child;
and the ability of the relative to provide a safe home and proper care for the
child. (§ 361.3, subd. (a).)
In
the present case, some of these factors were consistent with a relative
placement in R.S.’s home; R.S. had been the child’s primary caretaker before
her trip to Fiji and mother wanted I.S. to live with R.S. However, the juvenile court ultimately
concluded that R.S. could not provide a safe home for the child because she
could not protect him from mother. On
appeal, mother contends that the juvenile court abused its discretion because
the finding that R.S. could not protect I.S. from mother is not supported by
substantial evidence. We disagree.
The
evidence before us regarding R.S.’s conduct throughout these proceedings,
including her testimony over the several months it took to complete the
contested jurisdiction/disposition hearing, substantially supports the finding
that her home was not a safe placement for I.S.
At the beginning of this case, when I.S. was detained, R.S. admitted
that mother was too mentally ill to live on her own notwithstanding her violent
behavior toward R.S. and I.S. However,
when R.S. testified at the contested hearing, she claimed that she did not
previously know that mother was mentally ill and that she had no concerns about
mother’s ability to care for I.S. while living in her home. When R.S. testified again in December, after
mother elected to move out, R.S. finally admitted that she should not have left
I.S. with mother when she went to Fiji.
But even then, she failed to acknowledge the extent of her daughter’s
mental health problems or the risk of harm to I.S. that those problems created.
Like
the juvenile court, we have no doubt that R.S. loves her grandson and would
like to care for him in her home.
However, the evidence before us also clearly demonstrates that R.S. has
a conflicting commitment to care for mother and that conflict precludes her
from providing a stable and safe home for I.S.
The numerous and, frankly, unexplained continuances in this proceeding
afforded mother the opportunity to secure an alternative residence. However, the Agency reasonably concluded that
situation was not stable, particularly in light of the contemporaneous report from
mother’s psychologist that she is not capable of independent living. And, there is strong evidence that when
mother finds herself without a home, R.S. will take her back. There is also substantial evidence that, even
if mother retains a separate residence, R.S. will give her unsupervised access
to I.S. once the Agency is no longer involved in their lives.
We
share the view of the juvenile court that this is indeed a very sad case. However, the record before us establishes
that the court’s placement decision hinged, as it must, on the best interests
of the minor. Therefore, we conclude
that mother has failed to establish that the court abused its discretion by
denying the request to place I.S. in the home of R.S.
DISPOSITION
Mother’s
petition for extraordinary relief is denied on the merits. Our decision is final as to this court
immediately. (Cal. Rules of Court, rule
8.264(b)(3).) The temporary stay of the
section 366.26 hearing is lifted and this case is remanded to the juvenile
court so that a section 366.26 hearing can be held forthwith.
_________________________
Haerle,
J.
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
name="_ftn1" title=""> [1] Undesignated statutory references are to the
Welfare and Institutions Code.
