E.M. v.
Filed 3/20/13 . E.M. v. Super Ct.
CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
E.
M.,
Petitioner,
v.
SUPERIOR COURT OF CONTRA COSTA COUNTY,
Respondent,
CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU et al.
Real Parties in Interest.
A137259
(Contra Costa County Super. Ct.
No. J11-01732)
E.M. (Mother)
challenges dispositional orders
entered November 27, 2011, in which the juvenile court set a hearing under
Welfare and Institutions Code section 366.26
(born December 2011). Mother claims the
court erroneously denied her reunification services pursuant to section 361.5,
subdivision (b)(5) and (b)(6), and failed to comply with the requirements of
the Indian Child Welfare Act (ICWA).
We deny the petition.
Background
The
Services Bureau (Bureau) filed a petition under section 300, on December
27, 2011—four
days after R.F.’s initial detention.
Allegations under section 300, subdivision (e), stated R.F. had
sustained severe physical injury while in the sole custody and care of his
parents, during the period following his birth through the date of initial
detention, in that he had suffered a non-accidental skull fracture, a
non-accidental rib fracture, wounds on his face and hand that appeared to be
the result of burns, and multiple non-accidental human bite wounds on his body
(allegations (e)(1) through (e)(4)).
Additional allegations, under section 300, subdivision (i), were stated
in three sets. That is, R.F. was
subjected to cruelty in that he suffered the above-alleged injuries while in
the sole custody and care of Mother (allegations (i)(1) through (i)(4)), while
in the sole custody and care of J.F. (Father) (allegations (i)(5) through
(i)(8), and while in the sole custody and care of both parents (allegations
(i)(9) through (i)(12)).
The juvenile
court formally detained R.F. on December 28, 2011.
A significant delay ensued before commencement of the
accomplish the extensive investigation and discovery relating to the foregoing
allegations of serious physical abuse and cruelty. Some nine months later, on September 21 and
27, 2012, the juvenile court entered jurisdictional orders in which it
dismissed the allegations of cruelty inflicted solely by Father (allegations
(i)(5) through (i)(8)), but sustained as true all the remaining
allegations. In doing so, the court commented
it was clear Mother was the perpetrator.
“[Mother] did this[, a]bsolutely.â€
At the
conclusion of the dispositional hearing, on November 27, 2012, the juvenile
court denied reunification services to Mother under section 361.5, subdivision
(b)(5) and (b)(6), and denied services to Father under section 361.5,
subdivision (b)(5).
Mother’s petition followed. (§ 366.26, subd. (l).)
Discussion
Reunification Services
At disposition a juvenile court may
deny reunification services to a parent when, as here, it finds by clear and
convincing evidence the child was brought within section 300, subdivision
(e), because of the conduct of that parent.
(§ 361.5, subd. (b)(5).) After
making such a finding, the court is required to deny services to that parent
unless, among other alternatives, it finds “based on competent testimony, those
services are likely to prevent reabuse.â€
(§ 361.5, subd. (c).)
Mother contends the juvenile court
erred denying services under section 361.5, subdivision (b)(5), because it
failed to find services would be likely to prevent reabuse, pursuant to section
361.5, subdivision (c). She argues she
presented evidence showing her “strong motivation†to address the problems leading
to R.F.’s removal, as well as evidence that reunification services were likely
to prevent reabuse.
Here the court, in
denying services to Mother under section 361.5, subdivision (b)(5), essentially
found by implication reunification services were not likely to prevent reabuse.
We review that finding under the substantial evidence standard. That is, we do not reweigh the evidence or
make credibility determinations, but review the entire record in the light most
favorable to the juvenile court’s findings to determine if there is substantial
evidence in the record to support the finding.
(A.A. v. Superior Court (2012)
209 Cal.App.4th 237, 242.)
According to the
dispositional report submitted into evidence, Mother asked in October 2012 that
she be given a chance to parent R.F., reporting she was currently engaged, on
her own initiative, in individual therapy and a parenting group. Because Mother’s counsel, however, had
rescinded her consent forms, the assigned social worker (SW) was unable to
verify Mother’s attendance, participation, or progress. When the SW asked Mother to describe what she
learned in her parenting group, she replied she had learned to “listen†when he
asked for help, although R.F., at 10 months of age, was still non-verbal at the
time. Mother was similarly unable to describe
concrete steps for soothing a crying infant.
The SW reported Mother had provided conflicting answers throughout the
investigation, and had never accepted responsibility for the R.F.’s
non-accidental injuries, although, as we have noted, the juvenile court
expressly found Mother to be the perpetrator of those injuries when it
sustained the jurisdictional allegations set out as (e)(1) through (e)(4),
(i)(1) through (i)(4), and (i)(9) through (i)(12).
credible both Mother’s denial of responsibility and Father’s belated report (in
August and October 2012) that he “may†have caused R.F.’s injuries.
At the dispositional
hearing, Mother continued to deny any responsibility, blaming Father for R.F.’s
injuries, while denying she had any awareness at the time of Father’s
conduct. While Mother testified she had
learned in her parenting group to control her anger “if [she] need[ed] to,†she
denied having any actual anger control issues.
The SW also testified at
the dispositional hearing as a qualified expert in social work. In her opinion, the prognosis of Mother’s
success in engaging in services, should they be offered, was “poor,†based on
the severity of the injuries on an extremely young infant, the lack of evidence
indicating progress or insight on Mother’s part, and Mother’s continuing
refusal to take responsibility in the face of evidence supporting the juvenile
court’s express determination that Mother was, in fact, the perpetrator. The SW’s contacts with Mother’s therapist and
parenting group leader further indicated that Mother had not been forthcoming
with either, concerning the factual circumstances underlying R.F.’s
removal. Thus neither the therapist nor
the parenting group leader had been sufficiently apprised of the issues Mother
needed to address.
We note finally the
juvenile court, at the conclusion of the dispositional hearing, continued to
regard Mother as the perpetrator, finding not credible her testimony at that
hearing denying responsibility and blaming Father.
This record, in our view,
provides substantial support for the juvenile court’s implied finding that
services to Mother were not likely to
prevent reabuse on her part, within the meaning of section 361.5, subdivision
(c). (See A.A. v. Superior Court, supra, 209 Cal.App.4th at p. 242.)
The juvenile court may additionally
deny reunification services to a parent when, as here, it finds by clear and
convincing evidence the child was adjudicated a dependent of the court under
section 300 due to the “infliction of severe physical harm to the child,†and
the court finds it “would not benefit the child to pursue reunification
services with the offending parent.†(§ 361.5, subd. (b)(6), italics added.) After making such a finding, the court is
similarly required to deny services to that parent, unless it finds by clear
and convincing evidence that “reunification is in the best interest of the
child.†(§ 361.5, subd. (c).) The court in this instance found explicitly
that services to Mother would be “detrimental†to R.F.—by implication
determining such services were not in
R.F.’s best interests.
Mother claims the juvenile court
improperly denied reunification services to her under section 361.5,
subdivision (b)(6). She insists she was
“simply negligent†in her failure prevent the injuries to which Father had
confessed, thus suggesting she was not the offending
parent within the meaning of section 361.5, subdivision (b)(6).
This contention lacks merit. The juvenile court clearly found section
361.5, subdivision (b)(6), to be applicable to Mother as the
credible the contrary testimony or reports given by Mother and Father. As we have said, we
do not reweigh the evidence or reassess credibility determinations. (A.A.
v. Superior Court, supra, 209 Cal.App.4th at p. 242.) We conclude, on the other hand, that the
evidence summarized above provides substantial support for the court’s implicit
determination that services to Mother would not
be in R.F.’s best interests within the meaning of section 361.5,
subdivision (c).
The notice, other procedural
requirements, and substantive requirements of ICWA (25 U.S.C. § 1901 et seq.)
are codified by state statutes
and rules. (See Welf. & Inst. Code,
§§ 224-224.6; California Rules of Court, rules 5.480–5.487.
subject to these provisions, in that she might have Indian ancestors belonging
to the San Carlos Apache tribe.
Mother urges the juvenile court erred
in failing to make necessary findings regarding ICWA at the dispositional
hearing, and improperly referred those issues to a later hearing set in January
2013.
These objections are not supported by
the record. Exhibits submitted at the
dispositional hearing show that the Bureau completed JC form ICWA-030, which
set out all the information Mother initially provided on December 23, 2011. The Bureau’s form ICWA-030 also included
subsequently submitted to the Bureau in February 2012.
by certified mail to the BIA, the San Carlos Apache tribe, and seven other
Apache tribes. Response from each of the
notified tribes, including the San Carlos Apache tribe, indicated R.F. was not
eligible for tribal membership.
Based on these exhibits, the juvenile
court found the Bureau had properly complied with the notice requirements of
ICWA, and also found R.F. was not an Indian child. Nevertheless, the court commented that such
findings were always subject to further information, and indicated such issues
could be addressed at another time. It
was only for this reason that the court—out of an abundance of caution—commented
that “any further ICWA issues†might be considered at the placement hearing it
had set for January 2013.
On this record, we find no
noncompliance with the notice provisions of ICWA at the time of the
dispositional orders.
We note finally Mother’s reliance on
rule 5.481, for the proposition that the juvenile court was required to apply
the provisions of ICWA in this proceeding because of her indication that R.F.
making dispositional orders that failed to apply substantive provisions of ICWA—which apply to an Indian child when
determining matters such as foster care placement, termination of parental
rights, and the provision of remedial services to prevent the breakup of an
Indian family. Rule 5.481, however,
applies only to compliance with the inquiry
and notice provisions of
ICWA. The juvenile court was not
required to apply the substantive provisions of ICWA, where, as here, it found
the dependent child was not an Indian
child.
Disposition
The request for stay is denied, and
the petition for extraordinary writ is denied on the merits. (See Cal. Const., art. VI, § 14;
Cal.4th 888, 894; Bay Development, Ltd.
v. Superior Court (1990) 50 Cal.3d 1012, 1024.) The decision is final in this court
immediately. (Rules 8.452(i),
8.490(b)(3).)
_________________________
Banke,
J.
We concur:
_________________________
Margulies, Acting P. J.
_________________________
Dondero, J.
name="_ftn1" title="">[1] All further statutory references are to the
Welfare and Institutions Code unless otherwise indicated.
name="_ftn2" title="">[2] Title 25 United States Code section 1901 et
seq.
