In re Genevieve C.

Filed 3/12/10 In re Genevieve C. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Lloyd M. Harmon, Juvenile Court Referee. Affirmed.

Sandra C. and Richard C. appeal orders from a review hearing continuing the juvenile court's jurisdiction over their three children, Genevieve C., Donovan C. and Derrick C. (together the children). Richard also appeals the court's denial of his request for supervised visitation with Donovan and Derrick. Sandra contends substantial evidence does not support finding it was necessary to continue jurisdiction because the children have thrived since the court placed them in her care, and she has participated in services and completed all of her case plan goals. Richard joins in her arguments as they inure to his benefit. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

On January 21, 2007, seven-week-old Donovan was hospitalized for unexplained nonaccidental head trauma. The San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of Donovan, his twin brother Derrick and their sister Genevieve, who was nearly three. The petition filed on Donovan's behalf under Welfare and Institutions Code,[1] section 300, subdivision (e) alleged he had suffered bilateral subdural hematomas and a bruise on his forehead, all inflicted by a parent. The petitions on behalf of Derrick and Genevieve under section 300, subdivision (j) alleged they were at risk because of the abuse to Donovan. On February 13 the Agency filed an amended petition on Derrick's behalf, adding an allegation under section 300, subdivision (e) that he had subacute to chronic subdural hematomas similar to Donovan's injuries. Richard admitted shaking the two infants out of frustration.[2] The children were detained and on March 16 the court found the allegations of the petitions to be true.

A psychologist who speaks Vietnamese, Sandra's native language, conducted an evaluation of Sandra. He opined she was suffering from moderate anxiety and depression and would benefit from reunification services, including counseling and parenting education. At the disposition hearing on May 16, 2007, the court declared the children dependents of the court, continued their placement with a maternal aunt and uncle and ordered Sandra to comply with her case plan. Richard was not offered reunification services.

At the time of the six-month review hearing in September 2007, Sandra's therapist reported Sandra had not yet made any progress in that she continued to believe Richard's actions were accidental. The therapist attributed Sandra's lack of progress to culturally related issues and Sandra's lack of knowledge about shaken baby syndrome. Richard participated in services on his own. Sandra had supervised visitation with the children and spent all of her free time assisting in their care.

In November 2007 Sandra's therapist reported Sandra continued to participate in therapy, and the court ordered she would have short unsupervised visits with the children. That month, because the maternal aunt and uncle were leaving for an extended trip to Vietnam, the children were placed with the maternal grandparents. Sandra's home is adjacent to their home.

In June 2008 the court adopted the social worker's recommendation that it place the children with Sandra. Sandra had completed a parenting education program and had conducted research on shaken baby syndrome. Her therapist said she was committed to providing a nurturing home for the children and had shown she understood the severity of the abuse. At a hearing in January 2009 the court continued placement with Sandra.

Sandra and Richard were employed at the same facility. Although they did not live together, they continued to have contact and Sandra told the social worker she wanted to reunify with Richard, but knew she would have to monitor his relationship with the children. By July 2009 she appeared to have gained some independence and no longer relied on Richard for transportation. He continued therapy and other services at his own expense. His therapist recommended he be reunited with his family, but the social worker expressed concern that Sandra still was unable to articulate how she would protect the children and had stated Richard did not mean to hurt them and had paid for his actions.

At the review hearing on August 24, 2009, the social worker acknowledged Sandra had gained some independence from Richard, and, since the children had been placed with her, had not allowed him to be near them and had complied with all of the services offered. However, the social worker testified she believed Donovan and Derrick remained at high risk because of their young age and because Sandra was unable to express how she would protect them from further abuse.

Sandra testified she had learned about shaken baby syndrome and would always protect the children and trust no one. She said the children were normal and had not been injured by being shaken. She said she had not been thinking about reunifying with Richard, but only about the children.

After considering the evidence and arguments of counsel, the court found the children remained at risk. It continued them as dependents of the court, denied Richard's request for supervised visits with Donovan and Derrick, and continued the children's placement with Sandra.

DISCUSSION

I

Sandra joined by Richard contends substantial evidence does not support the court's decision to continue jurisdiction. She argues at the time of the hearing the children were thriving in her care, her family members were providing strong support, and she had completed all of her therapy goals, actively participated in all services offered and had researched the effects and dangers of shaken baby syndrome on her own.

Under section 364, subdivision (c) and California Rules of Court, rule 5.710(b)(1), if the court determines the child may safely be returned to the parent, it terminates jurisdiction unless the social worker establishes that conditions still exist that require supervision. "The court shall terminate its jurisdiction unless the [social services agency] establishes by a preponderance of the evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn." ( 364, subd. (c); Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 304.) If the court determines continued supervision is required, it continues the matter for six months, at which time it holds a review hearing. ( 364, subd. (c); Cal. Rules of Court, rule 5. 710 (b)(1).)

A juvenile court's decision whether to continue jurisdiction is reviewed under the substantial evidence test. (In re N.S. (2002) 97 Cal.App.4th 167, 172.) A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also ' . . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Substantial evidence supports the court's decision to continue juvenile court jurisdiction for an additional six months. In September 2007 the social worker reported it did not appear that Sandra fully understood how the children could have been seriously hurt and she continued to be supportive of Richard and dismissed his actions, believing they were accidental and that, because the children appeared to be doing well, the abuse was not serious.

In the report dated July 2009, the social worker continued to express concern. She said Sandra had said she believed Richard did not mean to hurt Donovan and Derrick and he had paid a price for his actions. The social worker said Sandra still could not articulate how she would be able to protect the children. In an addendum report dated August 24, the social worker reported it was still unknown whether Sandra had the ability to protect the children. The social worker was concerned by her statements such as, "My husband is a nice man. He did not mean to hurt them."

Although, as Sandra argues, by the time of the hearing she had participated in all of the services offered to her and had provided care for the children for nearly 15 months, her testimony at the hearing shows the risk continued. She testified she had learned a lot about shaken baby syndrome and she would protect her children. However, she was not able to articulate a safety plan she would follow if a dangerous situation were presented. It was most concerning that she did not appear to appreciate the harm that Richard had done to Donovan and Derrick. When asked if she believed the children's injuries by Richard were an accident, she answered, "Yes." When asked if they were injured as a result of being shaken, she said, "No," and that her children are very normal.

The evidence presented supports the finding the children remained at substantial risk in that the conditions which would justify initial assumption of jurisdiction under section 300 were likely to exist if supervision were withdrawn. ( 364, subd. (c).) Sandra has not shown error by the court continuing its jurisdiction for an additional six months.

As to Richard's appeal of the court's denial of his request for supervised visitation with Donovan and Derrick, orders regarding visitation may be reversed only upon a clear showing of an abuse of discretion. (In re Emmanuel R. (2001) 94 Cal.App. 4th 452, 465.) " 'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Richard has not shown an abuse of discretion by the court declining to order supervised visitation.

DISPOSITION

The orders are affirmed.

HUFFMAN, J.

WE CONCUR:

BENKE, Acting P. J.

McDONALD, J.

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[1] Statutory references are to the Welfare and Institutions Code.

[2] Richard said on the morning of Donovan's injuries, he had trouble soothing him, and Donovan spit up on his clean shirt. Richard believed he had shaken him, but said he did not shake him violently or intend to hurt him. He acknowledged it was possible that in the past he had shaken both babies when he was frustrated. Richard was convicted of child abuse and sentenced to five months of work furlough. He was released on November 1, 2008, and placed on five years' probation.