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In re H.E.

December 23, 2008

IN RE H.E. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW.
HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
A.E., DEFENDANT AND APPELLANT.



(Humboldt County Super. Ct. No. JV070221-1-2), Trial Judge: Hon. Christopher G. Wilson.

The opinion of the court was delivered by: Lambden, J.

CERTIFIED FOR PUBLICATION

A.E. (mother) appeals from dispositional orders of January 9, 2008, declaring daughters H.E. and S.E. (then ages three and one) dependents of the juvenile court and maintaining them in foster care. She claims insufficient evidence to support the court's removal and reasonable efforts findings. We reject her challenges and affirm.

BACKGROUND

This case came to the attention of the Humboldt County Department of Health and Human Services (department) through a referral to child welfare services (CWS) from the judge in a marital dissolution action (Humboldt County Super. Ct., No. FL070336) where the parents' bitter custody battle and accusations had raised concern for the children's welfare. The juvenile court took judicial notice of the family law case file at disposition, and we do the same at the request of the department.

Mother had filed a petition for dissolution on July 2, 2007, and the family law court ordered the CWS investigation 10 days later, asking for a report on whether the children were at risk in parental custody.

Mother's charges against father in the dissolution action were wide-ranging but included violence, drug abuse, and neglect and sexual molestation of the daughters, particularly H.E. Mother was convinced of sexual molestation because H.E. got upset when mother changed her diaper. Mother wanted sole legal and physical custody, with no contact for the father, and sought restraining orders against him. The father agreed to drug testing, and repeated testing failed to show drug use. He denied any abuse or neglect of the children, was cooperative and complained that mother was verbally abusive in front of the children, had punched him in the mouth, and would rant and rage in front of the children, upsetting them and him. He once took the children with him to a violence shelter, and mother saw this as taking them hostage. Mother charged that he had hit and beaten her but was "careful not to leave marks" because he had a criminal record.

An August 2007 CWS report to the family law court by Social Worker Rachel Jensen, issued after an investigation of many sources, found the allegations of physical, sexual, and emotional abuse "unfounded," but that both parents put the children at risk of emotional abuse by arguing in front of them and waging the ongoing custody battle. The father agreed to CWS voluntary services and enrolled in a parenting class; mother refused services and wanted Jensen to tell the court that the father should be charged with sexual and physical abuse.*fn1

An original dependency petition filed as to both children on October 2, 2007, alleged failure to protect (Welf. & Inst. Code, § 300, subd. (b)) and serious emotional damage (id., subd. (c)).*fn2 Counsel were appointed for the children and parents, and the children were detained in foster care pending and after a detention contest where Social Worker Pamela Owens briefly testified.

The parents had a history of 15 prior child services referrals, two in San Diego County and then 13 more in Humboldt County. Five had been investigated, two with claims against the mother substantiated, but always with those against the father either unsubstantiated or deemed inconclusive. Social Worker Owens in this case reviewed all of the prior referrals, which showed mother having raised various allegations against the father, such as having a violent girlfriend who threatened to kill H.E., plus emotional, physical, and sexual abuse by the father.

During the investigation on this referral from the family court in September 2007, Social Worker Carolyn Campbell went to the home and found it difficult to converse with mother, who talked "incessantly in a 'rapid and pushed' manner." H.E., who was still two years old, was very active and "defiant towards her mother, slapping and scratching at her," and also hit and spat at Campbell. Despite Campbell's "constant reminders" not to discuss her sexual abuse claims in front of the children, mother "could not contain herself and stated that the father had digitally penetrated" H.E. Advised that Campbell was there to help obtain services, including counseling for the children, mother was adamant that the only counselor she wanted for H.E. was one "who specialized in child sexual abuse." She was upset that the children would be visiting with the father and ranted that "his fingers are always dirty" and that "a child molester should not get to see his children." She told the girls, " '[T]his nice lady will keep you safe so daddy can't hurt you.' "

When Owens later went with four sheriff's deputies to take the children into custody, she too found H.E. violent-"hitting, kicking, slapping, and trying to bite and scratch her mother," and trying to hit and kick the deputies as well. Mother said CWS was "just like San Diego CWS," taking children "so they can be sold to people with money." The event precipitating the removal was when mother came late to pick the children up after a supervised visit with the father. Campbell and the father had the children in a car at the visitation center, and mother, upon seeing H.E. crying (for her father), began ranting and raving and pulling at H.E. while she was still buckled in her car seat (making the child scream), screaming that Campbell and the father had made H.E. cry, and then going on "about the monster [father]" in front of the girls.

Campbell supervised mother's first post-removal visit with the children, and it generally went well, with mother refraining from negative comments about the father.

H.E. then grew aggressive and pushed S.E. off a slide, and when H.E. began to cry at the end of the visit, mother charged that this was because H.E. was afraid to go back to the foster home. Prior to the children's removal, mother had brought them to have supervised visits with the father. A first visit went well, although mother engaged Supervisor Carole Haben in a "long conversation regarding the children, their medical issues, and her personal issues." A second visit was cancelled under odd circumstances. When phoned by Haben and reminded of the visit, mother said she would not bring the children because they were ill; when Haben tried to clarify, mother loudly asked whether Haben was "threatening" her and insisted that she was not canceling a visit since there was none scheduled. When mother brought the children in on another matter later that same day, neither child appeared to be ill. Mother reported to Haben that, "during the last visit with their father he had threatened to kill the family cat and cook it."

Then a visit between mother and the children supervised by Haben a week later ended in chaos and the visits being temporarily halted. Upon learning that the children had oatmeal for breakfast, mother began grilling the girls on the oatmeal and the foster home. When Haben cautioned that this was inappropriate, mother yelled and grew "explosive," so that Haben had to shelter the children in a bathroom while a 911 call was made. Detailed narratives chronicle continuing accusations by mother of father sexually abusing S.E. and doing things like driving by 15 to 20 times a day tearing insulation off her trailer, and trying to have her evicted, and CWS and the foster mother abusing the girls or stealing their clothing.

Meanwhile, visits with the father went well. The girls were warm toward him and exhibited no behavior suggesting sexual abuse. H.E. "was like a whole different child with her father," playing, laughing, and saying please and thank you. The father did not make accusations against mother in their presence. The foster mother reported that H.E. returned from visits with mother "agitated" yet, following visits with the father, "pine[d]" for him and stood by the window looking to see if any passing vehicles were his truck.

Both parents reported American Indian heritage early in the proceedings, but efforts under ICWA (Indian Child Welfare Act; 25 U.S.C. ยง 1901 et seq.) ultimately revealed that the children had Wiyot Tribe heritage but were not eligible for membership. Thus no tribe intervened in the dependency. Soon after mother had her visits halted, mother sought help through the Bear River Band of Rohnerville Rancheria. Johanna Creson, a social worker and Sanches violence coordinator there, contacted CWS workers and got mother started in a variety of services, also accompanying her to supervised visits with the children at the request of mother and CWS. Mother was not comfortable at the visits unless Creson was present. While the tribe would not be ...


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