M.
Filed 5/10/13 In re Maria M. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re MARIA M. et al., Persons
Coming Under the Juvenile Court Law.
FRESNO COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Plaintiff and
Respondent,
v.
ELIZABETH C.,
Defendant and
Appellant.
F065810
(Super.
Ct. Nos. 11CEJ300249-1, 11CEJ300249-2)
THE COURT
name="_ftnref1" title="">*
APPEAL from
orders of the Superior Court of
County. Mary Dolas, Commissioner.
Jacob I.
Olson, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin Briggs,
County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and
Respondent.
-ooOoo-
Elizabeth C. appeals from the
order removing her
17-year-old daughter Maria and three-year-old daughter Jacquelyn from her
custody under Welfare and Institutions Code section 361.
Elizabeth contends the order
must be reversed because there was no evidence the children were at risk of
harm in her care and there were less restrictive alternatives to removal. We affirm the juvenile court’s order.
PROCEDURAL AND
FACTUAL SUMMARY
Elizabeth and Dustin are an intact, married couple. Elizabeth is the mother of three daughters,
Marissa, an adult, and minors, Maria and Jacquelyn, the subjects of this appeal. Dustin is Jacquelyn’s father.
He also has a teenage son, Jesse.
In November 2011, Fresno police officers were dispatched to
Elizabeth and Dustin’s apartment to investigate a disturbance. The reporting party (RP), a neighbor,
reported hearing a male yell that he was going to shove food down a juvenile’s
throat. The RP also stated it sounded
like the juvenile was being hit or slapped.
When the officers arrived, the RP confirmed that the disturbance was
coming from Elizabeth’s home. She said the
father was very abusive to the son and that the son was very quiet. She said even the children in the complex
were aware of the abuse. She was
concerned the juvenile was in danger of being seriously hurt by his
father.
Dustin answered the door of his apartment, intoxicated and
holding a beer. The officers ran a
criminal check on Dustin and discovered he had two warrants, one for a willful
cruelty to a child stemming from a report of child abuse in March 2011 and the
other for driving under the influence.
Then 17-year-old Jesse emerged from a back bedroom, wearing
a T-shirt and very short shorts. He
appeared extremely emaciated and thin, was dirty and had body odor. He told Officer Christopher Long that he had
just taken a shower and took Long to a back bedroom and into the bathroom where
he said he was “on the wall.†Jesse
explained that being “on the wall’ was being grounded. He said he was grounded “all the time.†Jesse pointed to a chain at the top corner of
the door and stated that Dustin and Elizabeth locked him in the bathroom. Long told Jesse to remain in the bedroom
while he spoke to Elizabeth.
Elizabeth admitted confining Jesse in the bathroom but
denied locking him in there. She said
they put Jesse in the bathroom for everyone’s safety and the lock on the door
was to keep Jacquelyn from playing in the toilet water. Long noticed that the other bathroom in the
apartment did not have a lock and that the only other room with a lock on the
door was the room Jesse was sometimes allowed to sleep in.
Long returned to find Jesse in the bathroom staring at the
walls. Long was concerned that Jesse
either had a mental disorder or was mistreated to the point of having suffered
psychological damage so he called for emergency services. Long asked Elizabeth if Jesse was medically
evaluated. She said they took him to
school counselors but Jesse refused to see a doctor or attend counseling
sessions and she did not believe she could force him.
Dustin said that they had problems with Jesse lying and
stealing and being disrespectful for four to five years. Dustin stated, “I don’t care what he is doing
as long as he keeps out of my way.â€
Dustin admitted locking Jesse in the bathroom and bedroom at times. He said that evening Jesse did not want to
eat. He slapped Jesse twice across the
face when he discovered that Jesse tied a piece of string around one of his
toes. He said Jesse occasionally tied
string around his legs, abdomen and appendages to conceal them from
Dustin. Dustin could not explain why
Jesse did this.
Dustin also said that Jesse was not allowed to wear shoes,
pants, socks or even a shirt while he was in the apartment to make sure he did
not steal anything. Jesse could earn
clothing back by good behavior. He said
they provided Jesse pants, a shirt and shoes when he left the apartment. Dustin said Jesse was not attending school
and they intended to home school him.
Long later discovered that Jesse’s withdrawal from public school
coincided with a complaint Jesse made that spawned a child protective services
investigation.
Long also talked to Maria about the disturbance that
occurred during dinner. She said she was
sitting in the living room on the couch eating dinner and watching
television. She said she did not hear
any disturbance during dinner. Long
estimated that the distance between the dining room table and the living room
couch was approximately 15 feet. He
asked Maria how it was possible that she did not hear anything given her close
proximity. She responded that she was
not paying attention and did not hear anything.
Long concluded that Maria did not want to be honest and participate in
the investigation.
Long reported that Dustin’s dislike for Jesse was very
clear. Dustin stated he did not care
much for Jesse and wanted him to stay out of his way and not interfere with his
time with “his girls.†Long noted that
Maria and Jacquelyn were clean, well dressed and well nourished. Long arrested Dustin on his outstanding
warrants and he and Elizabeth were charged with willful cruelty to a child,
false imprisonment and failure to provide.
Maria and Jacquelyn were taken into protective custody by the Fresno
County Department of Social Services (department) and placed in foster care.
Jesse was transported to the hospital because his heart
rate dropped to a dangerous level while being evaluated by the paramedics. He was admitted and diagnosed with
malnutrition. Upon admission, he weighed
115 pounds, placing him at the 50th percentile for height and the fifth
percentile for weight. After four days
in the hospital, Jesse weighed 128 pounds.
His treating physician stated that his condition was severe and
potentially life-threatening.
While hospitalized, Jesse provided more detail to the
investigating officer. He said that his
biological mother was schizophrenic and that she choked him, stabbed him in the
head with car keys and beat him with some type of tool or wrench when he was
six years old. When he was 12 years old,
he went to live with Dustin. He said he
did not have a bedroom and slept in the bathroom or on the floor in the
playroom that belonged to Jacquelyn. He
said he was not allowed to sleep with a blanket and had “begged†for one. He said he did not report his mistreatment
because his parents told him if he did anything aggressive he would be put in
jail. He said he collected little things
because he was creative and got bored.
He went to bed and to the bathroom when given permission. He was required to leave the bathroom door
open while voiding.
Jesse said he did not generally eat with the family and
that Elizabeth prepared the meals. When
he was allowed to eat at the same time as the family, he was not allowed to eat
in their presence but was required to eat standing in the kitchen or in another
room. He said on the night the police
were called, he was fed a half a plate of vegetables around dinner time and
told to go to his room while the rest of the food was prepared. At one point, Elizabeth checked on him and
saw that he had tied a string around his toes.
Dustin then came in and slapped him across the face approximately 10 to
20 times. He remained there until the
police came. Elizabeth told him to tell
the police he had just gotten out of the shower and to put a shirt on. He said approximately two months earlier,
Elizabeth hit him on the back with a broken broom handle.
The RP told the investigating officer she was concerned
that Jesse would be returned to his parents.
She said she feared for some time that he would be killed. She said she heard Elizabeth on numerous
occasions yelling at Jesse and saw Jesse digging in garbage cans, looking for
food. She said on one occasion a
neighbor offered Jesse food. When Elizabeth
found out, she yelled at Jesse, stating “You don’t f****** deserve to
eat.†She also heard Dustin yell on
occasion, “I’ll shove it down your f****** throat.â€
The department filed a dependency petition on behalf of
Maria and Jacquelyn alleging there was a substantial risk that they would
suffer abuse or neglect in Dustin and Elizabeth’s care because Jesse was
malnourished with a dangerously low heart rate while in their care. The petition also alleged that Dustin abused
alcohol and that Maria’s father was incarcerated and unable to provide for
her. (§ 300, subds. (b) & (g).) The petition was subsequently amended to
include findings that Jesse gained at least 13 pounds in five days and was
diagnosed with failure to thrive.
The department filed a separate dependency petition on
behalf of Jesse because Elizabeth was not his biological mother.
The juvenile court ordered Maria and Jacquelyn detained and
ordered the department to offer Dustin and Elizabeth parenting classes and
mental health evaluations. The court
additionally ordered Dustin to complete a substance abuse evaluation and submit
to random drug testing. The court set
the jurisdictional hearing for February 2012.
The juvenile court also ordered Jesse detained at a
separate hearing but did not offer Dustin services. The juvenile court subsequently adjudged Jesse
a dependent of the court and Dustin waived reunification services.
By February 2012, Elizabeth and Dustin were participating
in parenting classes and Dustin completed a substance abuse assessment,
resulting in referrals for intensive outpatient treatment and random drug
testing. They also completed mental
health assessments. The therapist that
evaluated Elizabeth described her affect as “flat†and stated that Elizabeth
showed little compassion for Jesse and denied any responsibility for his
condition. The therapist questioned
Elizabeth’s truthfulness and recommended that she undergo a psychological
evaluation. Similarly, the therapist who
assessed Dustin recommended that he undergo a psychological evaluation.
In February 2012, the juvenile court convened the
jurisdictional hearing and adjudged Maria and Jacquelyn dependents of the court
after Elizabeth and Dustin waived their right to a hearing on the
allegations. The court set the matter
for a dispositional hearing in March 2012 and ordered weekly unsupervised
visitation.
In March 2012, Elizabeth’s attorney requested disclosure of
mental health information from Jesse’s case.
Jesse’s attorney invoked the psychotherapist-patient privilege on his
behalf and the juvenile court denied the request.
Also in March 2012, Elizabeth and Dustin completed a
Nurturing Parenting Program. The case
manager reported that Elizabeth participated in group discussions but never
mentioned Jesse and Dustin refused to discuss Jesse. The case manager was concerned about
Elizabeth and Dustin’s ability to provide a safe home for their children
despite their completion of the program.
In its dispositional report, the department recommended the
juvenile court order Maria and Jacquelyn removed and provide Elizabeth and
Dustin reunification services. The
matter was set for a contested hearing on the sufficiency of the evidence
supporting removal. Specifically at
issue was whether there was sufficient evidence that Maria and Jacquelyn were
at a substantial risk of harm if returned to Elizabeth and Dustin’s
custody.
The dispositional hearing scheduled in March 2012 was
continued and ultimately conducted in July and August of 2012. In the meantime, the juvenile court granted
the department discretion to proceed to liberal visitation.
In July 2012, the juvenile court convened the contested
from Dustin, Elizabeth, Maria and social worker Kathleen Miller. Dustin and Elizabeth denied depriving Jesse
of food. Dustin did not notice that
Jesse had any medical problems. Asked
how he explained Jesse’s low weight, he testified it could be his metabolism
because he was always active. Elizabeth
did not notice that Jesse was thin and did not believe the medical reports that
he was so thin he needed medical treatment.
She said that Jesse skipped meals by his own choice. Dustin denied locking Jesse in the bathroom
for timeout and he and Elizabeth denied refusing to discuss Jesse in the
parenting class.
Maria testified that Dustin yelled and she was fearful for
Jesse’s safety but did not think Dustin would hurt Jesse. She said she noticed that Jesse was thin but
did not wonder why. She said he was a
picky eater and was offered the same food as everyone else. She denied that Dustin deprived Jesse of
food. She also denied seeing Elizabeth
hit Jesse. She saw marks and bruises on
Jesse but said he liked to hurt himself.
Kathleen Miller testified that overnight visitation had
begun and the visits were positive.
Dustin and Elizabeth were affectionate with Maria and Jacquelyn and
there was a parent/child bond. She also
testified that Dustin and Elizabeth completed a parenting class and that Dustin
completed substance abuse treatment.
However, Ms. Miller explained that the department was concerned that
Dustin and Elizabeth’s refusal to discuss what happened to Jesse could portend
danger to Maria and Jacquelyn if they were returned home. In addition, neither parent was willing to
undergo a psychological evaluation.
Consequently, the department wanted to put a safety plan in place before
returning the girls.
Ms. Miller further testified that Dustin suggested the
department place the girls back in the home and conduct daily checks. However, the department did not believe that
was an appropriate alternative to removal.
Instead, the department believed the only way to evaluate the risk of
returning the girls to their home was for Dustin and Elizabeth to participate
in mental health services and develop a safety plan. She testified the risk of harm was returning
the children without the parents having dealt with the issues that led to
Jesse’s abuse.
During argument, Dustin and Elizabeth’s attorneys asked the
juvenile court to return Maria and Jacquelyn to their custody under family
maintenance. Minors’ counsel joined with
county counsel in arguing that the juvenile court order Maria and Jacquelyn
removed and order Dustin and Elizabeth to participate in a psychological
evaluation.
At the conclusion of the hearing, the juvenile court
ordered Maria and Jacquelyn removed and ordered
Dustin to include mental health and psychological evaluations. In doing so, the court stated in order to
evaluate the risk, if any, to Maria and Jacquelyn, one had to “[look] into the
parents’ psyche.†The juvenile court
further stated that Dustin and Elizabeth had not presented “even a base levelâ€
of understanding as to what happened with Jesse.
The juvenile court added another night to the overnight
visits and ordered the department to evaluate the adult sibling, Marissa, for
placement.
This appeal ensued.
DISCUSSION
Elizabeth contends there was insufficient evidence to
support the juvenile court’s removal order.
We disagree.
I.
law.
The standard for removal of a child from parental custody
is found in section 361, subdivision (c) which provides, in relevant part,
“A dependent child may not be taken from the physical
custody of [a parent] with whom the child resides at the time the petition was
initiated, unless the juvenile court finds clear and convincing evidence
...; ¶
[t]here is or would be a substantial danger to the physical health,
safety, protection, or physical or emotional well-being of the minor if the
minor were returned home, and there are no reasonable means by which the
minor’s physical health can be protected without removing the minor from the
minor’s parent’s or guardian’s physical custody.†(§ 361, subd. (c).)
“The parent need not be dangerous
and the child need not have been actually harmed for removal to be appropriate.
The focus of the statute is on averting harm to the child.†(In re
Cole C. (2009) 174 Cal.App.4th 900, 917.)
Although the juvenile court’s findings must be based on clear and
convincing evidence, we review an order removing a child from parental custody
for substantial evidence. (
1433.)
II. The record supports the juvenile court’s removal order.
Elizabeth challenges the removal order on three
grounds: (1) the burden of proof was
erroneously shifted to her; (2) there was insufficient evidence that returning
Maria and Jacquelyn to her custody would expose them to substantial danger; and
(3) the department failed to show there were no reasonable means to protect
Maria and Jacquelyn other than removal.
Burden of Proof
Elizabeth’s contention with respect to the burden of proof
is as follows: County counsel and
minors’ counsel argued she did not benefit from services. Such argument demonstrates she was expected
to prove she benefitted from services and Maria and Jacquelyn could be returned
to her without risk of substantial danger.
Therefore, instead of requiring the department to prove that returning
the children to her custody would expose them to substantial danger, she
contends, the burden was erroneously shifted to her to prove that substantial
danger did not exist. The record,
however, does not support Elizabeth’s contention. Counsel’s statements regarding benefit from
services were made in the context of Elizabeth and Dustin’s lack of
understanding of the harm they caused Jesse.
There is simply no evidence that anyone but the department bore the
burden of proving substantial danger.
Substantial Danger
Elizabeth contends the department failed to show how her
handling of Jesse (“an extremely troubled teenagerâ€) evidenced a substantial
danger to Maria and Jacquelyn. We
conclude the record amply portrays the risk of danger. Jesse was severely and systematically abused
while in Elizabeth’s care yet Elizabeth refused to admit that obvious
fact. She did not accept the medical
evidence that he was malnourished and failing to thrive. In addition, Elizabeth was not concerned
about Jesse’s condition. She did not
inquire about him and refused to discuss him.
One has to presume that cruelty of that magnitude without explanation
makes the person inflicting it inherently dangerous. Thus, it is reasonable to conclude that Maria
and Jacquelyn could be at substantial risk in Elizabeth’s care even though she
had no history of mistreating them and apparently took good care of them.
Alternatives to Removal
Elizabeth contends family
maintenance was a reasonable alternative to removal because she could have
addressed the department’s concerns (i.e. mental health counseling and safety
network) while under such an arrangement.
She cites two cases, In re Henry
V. (2004) 119 Cal.App.4th 522 (Henry
V.) and In re Jeannette S. (1979)
94 Cal.App.3d 52 (Jeannette S.), that
resulted in reversal of a removal order and contends her case compels the same
result. We disagree.
In Henry V., the
court reversed the removal order of a child who sustained burn marks of
undetermined origin and whose mother had bonding deficiencies. (Henry
V., supra, 119 Cal.App.4th at pp.
527, 531.) The court reasoned the
physical abuse was a single occurrence and the mother was fully cooperative in
taking advantage of the services offered to her. In addition, removal had been premised on the
need to complete a bonding study but there was no evidence the study could not
occur with the child living at home.
Rather, the social worker acknowledged that in-home bonding services,
unannounced visits and public health nursing services could address the bonding
issue and mitigate the risk of further physical abuse. (Id.
at p. 529.)
In Jeannette S.,
the mother and father were divorced.
Social workers had visited the mother’s home and “found it dirty and
cluttered with debris. There were
extensive dog feces on the kitchen floor and cat feces in the bathroom. The house smelled of urine and there was
spoiled food on the stove. [The minor]
had been forced to sleep on the couch in the living room because her bedroom
was such a mess.†(Jeannette S., supra, 94
Cal.App.3d at pp. 55-56.) This court,
however, found the juvenile court’s dispositional order removing custody from
the parents was inappropriate because the juvenile court had two reasonable
alternatives to removal. It could have
imposed “stringent conditions of supervision by the welfare department with the
warning that if [the mother] again let her house get filthy or failed to keep
[the minor] in clean clothes and to properly care for her that appellant would
lose custody of the child.â€
Alternatively, the court could have placed the minor with her
father. (Id. at p. 60.)
We find Henry V.
and Jeannette S. distinguishable on
several key points. Unlike
incident of child abuse. Instead, his abuse
was ongoing and methodical. Further,
unlike the mother in Henry V.,
Elizabeth did not take full advantage of the services offered to her. Rather, she refused a psychological
evaluation and did not discuss her abusive behavior in parenting sessions. Unlike Jeannette
S., Maria and Jacquelyn could not be placed with their fathers. Maria’s father was incarcerated and Dustin
was considered as big a threat to Jacquelyn as Elizabeth. Finally, unlike Henry V., the department in this case did not believe that daily
checks on the family were sufficient to protect Maria and Jacquelyn from
harm. Further, the evidence does not
support imposition of stringent conditions such as those contemplated in
the evidence of abuse or neglect is readily apparent such as a dirty and
hazardous home. However, Jesse’s abuse
was only apparent because it had reached the point where he needed medical
attention. Such subtle and insidious
abuse is not readily apparent or necessarily detectable by stringent conditions
of supervision.
We concur with the juvenile court that Elizabeth’s
unexplained physical abuse of Jesse posed a substantial danger to Maria and
Jacquelyn if they were returned to her custody.
We further concur that there were no reasonable alternatives to the
children’s removal until Elizabeth was willing to examine the cause of the
abuse through mental health services.
Thus, we conclude substantial evidence supports the
juvenile court’s dispositional order removing Maria and Jacquelyn from
Elizabeth’s custody and affirm.
DISPOSITION
The dispositional orders entered on August 6, 2012, are
affirmed.
name="_ftn1" title="">* Before
Wiseman, Acting P.J., Levy, J. and Cornell, J.
name="_ftn2" title="">[1] All
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
