IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
February 22, 2011
IN RE E.E., JR., ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
K.E. ET AL., DEFENDANTS AND APPELLANTS.
(Super. Ct. Nos. JD229558, JD229821)
The opinion of the court was delivered by: Hull ,j.
In re E.E. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
E.E., Sr., (father) and K.E. (mother) appeal from the juvenile court's jurisdictional and dispositional orders removing minors E.E., Jr., and M.B. from the parents' custody and denying reunification services to father. (Welf. & Inst. Code, § 395 [unless otherwise specified, statutory references that follow are to the Welfare and Institutions Code].) Both parents contend there is insufficient evidence to support the jurisdictional findings and dispositional orders; father also attacks the order denying reunification services to him. We affirm the trial court's orders.
FACTS AND PROCEEDINGS
The First Section 300 Petition (E.E., Jr.)
On April 14, 2009, the Sacramento County Department of Health and Human Services (Department) filed a petition under section 300, subdivision (b), as to E.E., Jr., a six-month-old male, alleging that in February, March, and April 2009, mother disregarded medical recommendations for the minor, causing him to be hospitalized for failure to thrive.
The detention report added:
On February 26, 2009, mother was advised to give the minor formula, add rice cereal to his bottle, and start him on Zantac; mother stopped adding rice cereal and never started Zantac because she had read of possible side effects. The doctor, concerned about the minor's failure to gain weight, reiterated his advice.
On March 3, 2009, mother asked about switching the minor's formula to Nutramigen. The doctor advised that mother give thickened feedings and Karo syrup a chance.
On March 6, 2009, the minor was reweighed; he had gained no weight. Mother said she was diluting the formula. The doctor stressed it should be concentrated and advised mother that diluting it put the minor at risk of hyponatremia and seizures.
On March 10, 2009, mother demanded a switch to Nutramigen. Again, it was explained to her that she had not given the thickened treatment a chance.
On or around March 27, 2009, gastroenterologist Dr. Michael Durant concluded the minor probably had cow's milk protein entropy [sic; enteropathy] (i.e., milk intolerance) with secondary vomiting, constipation, and failure to thrive. As long as mother followed Dr. Durant's advice not to give the minor cow's milk, he did better, but then she resumed giving it to him and his symptoms returned. Dr. Durant thought mother did not accept the milk intolerance diagnosis; he suspected she lacked understanding and might have mental health problems.
On April 3, 2009, mother was advised to feed the minor three ounces every three hours and continue him on Nutramigen. However, mother refused to wake him up every three hours for feeding.
On April 6 or 7, 2009, the minor was admitted to Kaiser Roseville Hospital for failure to thrive and dehydration. His weight on admission was 4.741 kilograms (approximately 10 pounds). On April 10, 2009, when discharged, he weighed 4.895 kilograms.
Though the minor was medically ready for discharge, hospital staff had grave concerns about mother. They thought she gave misleading information and was "doctor shopping"; she was also suspected of Munchausen syndrome by proxy.
On discharge, the Department placed the minor in protective custody. Three days later, his weight had increased to 5.024 kilograms. He did not spit up after feedings or have diarrhea.
On April 10, 2009, interviewed by a social worker, mother denied all allegations against her. She had never refused treatment for the minor; however, she had not awakened him every three hours for feeding because it would not be "fair" to him.
On April 12, 2009, interviewed by another social worker, mother said the minor had weighed around 10 pounds since February, but the hospital did not seem concerned about it. She knew he was sick and had digestive complications, but thought it might be an undiagnosed heart condition. She would not wake him up to feed him because "[h]e knows when he wants to eat."
Mother alternated between saying she understood the allegations and saying she did not. She did not seem to grasp the severity of the minor's medical condition. Her moods and expressions shifted constantly. She asked: "Do you think the foster parents are taking him outside? Do you think they are walking in the home with their shoes on?" But she denied mental health problems and did not want a psychological evaluation.
Mother reported that father (E.E., Sr.) resided in Arizona. His last reported address, however, was at a Sacramento jail. He had felony convictions for robbery and assault.
The minor had two siblings or half siblings: M.B., a five-year-old female who lived with mother, and E.B., a seven-year-old male who lived with his father, J.B., in Solano County.
At the initial hearing on the section 300 petition on April 15, 2009, the juvenile court found that E.E., Sr., was the minor's presumed father.
At the detention hearing on April 17, 2009, the juvenile court learned that father was incarcerated through the State of California but housed in Arizona. The court ordered the minor detained, with supervised visitation and reunification services for mother.
The First Jurisdiction/Disposition Report
The jurisdiction/disposition report, dated June 9, 2009, recommended continued out-of-home placement for the minor, with reunification services and a psychological evaluation for mother, but no services for father, a convicted violent felon. (§ 361.5, subd. (b)(12).) The report stated:
On April 20, 2009, mother said father was transported to a correctional facility in Arizona before the minor was born; though father had never seen the minor, he held the minor out as his child. Interviewed by telephone, father said that after his upcoming release in December 2009 he planned to move in with mother and the minor.
Mother denied substance abuse and stated she had no current mental health diagnosis.
Mother did not know why dependency proceedings had arisen. She had done everything she could to get the minor the care he needed, following all medical advice and calling constantly to check on his progress. She had filed a complaint against Kaiser Medical Facility on April 6, 2009, because she believed the doctors were not providing appropriate care.
When prescribed formulas did not improve the minor's condition or worsened it, she added or subtracted ingredients according to her own judgment. She always told the doctors everything she was doing.
She requested Nutramigen after a dietician suggested it. On March 27, 2009, Dr. Durant told her to give the minor half Nutramigen and half regular formula. He did not tell her the minor had a milk allergy. A purported copy of the minor's medical records from the Kaiser Permanente Web site said the minor had "no known allergies." However, his actual records, which she saw only after he was taken into protective custody, included a notation of "possible cow's milk allergy."
On April 3, 2009, after the minor had been ill for two months even though mother brought him to the doctor's office every four or five days, he began vomiting again. Frustrated by the hospital staff's continually changing instructions, on her mother-in-law's advice she began giving the minor boiled cow's milk. The message she left about this went unanswered. On April 6, after she had fed him this way for three days in a row and he kept getting worse, she requested that he be hospitalized. Only then did she learn that he had been assessed as failing to thrive. She requested a second opinion because the minor had been sick for two months and she had received constantly changing information about the cause.
Mother said that not until April 3, 2009, had she been advised to wake the minor every three hours to feed him and had done so then (although with boiled cow's milk).
Asked whether, as stated in the detention report, she gave the minor two ounces of formula at a time instead of five to six (which he seemed to want), mother said she did not limit his intake to two ounces, but he usually would not drink more. Even so, he still vomited while in the hospital.
Mother admitted that she had asked that the minor be tested for other conditions, including SIDS and pyloric stenosis. She did not refuse to listen to the medical staff; they simply had not explained what caused the minor's condition.
Mother wanted the minor returned to her as soon as possible. She also wanted a full review of the minor's medical records.
Dr. Villalobos, the minor's original pediatrician, reported that by following medical directives only for a few days at a time, then changing the minor's treatment on her own, mother had complicated the case. She regularly did the opposite of what the doctors asked her to do. Her reporting of the minor's history also constantly changed, which made it hard to figure out what was going on. In short, according to Dr. Villalobos, "[s]he never allowed me to do my job."
The symptoms mother reported were observed by no one else, and her accounts were confusing. She claimed the minor vomited and had diarrhea, yet Dr. Villalobos never saw diarrhea or vomiting, only spitting up. She claimed the minor was "fussy," but he appeared very calm to Dr. Villalobos. She reported levels of formula consumption and urination which, if accurate, would have meant the minor was dehydrated, but he was not.
Dr. Villalobos suspected mother had mental health problems. She would present herself compliantly, then act otherwise. She gave inconsistent information about where she lived. She had different pediatricians for her children, which was another "red flag."
Jennifer Moore, the Kaiser Permanente social worker, reported that she met with mother throughout the minor's hospital stay. According to Moore, medical staff had told mother several times the minor had a cow's milk "allergy," yet she kept giving him cow's milk, which even a healthy child under the age of one should not get.
Mother said she would not follow the recommendation to feed the minor every three hours, waking him if necessary, because it would disturb him. Medical staff explained that his condition and weight required this amount of feeding, but she rejected the explanation and called the recommended treatment "invasive." However, once he was fed this way in the hospital, he "ate like a horse" because he was so hungry.
Mother appeared "more invested in trying to 'show up' the doctors than actually providing the child the care he needed." Sometimes she would fail to feed the minor because she was trying to engage the doctors in discussion.
Dr. Durant, the gastroenterologist, told mother on March 27, 2009, and several other times before the minor was hospitalized that he had a "probable cow's milk protein enteropathy." His progress on Nutramigen confirmed that, so Dr. Durant instructed mother to keep him on it. When mother, against his repeated instructions, put the minor back on cow's milk, it caused "a 'near anaphylactic reaction'" which forced hospitalization. During the hospitalization, at a conference with mother and medical staff, Dr. Durant again informed her they were treating the minor for diagnosed cow's milk enteropathy; then he asked her what they were treating the minor for and she said, "We don't know." When staff reported that the minor was gaining weight in the hospital, mother denied it. Whatever staff said, she would contradict and demand that the minor be assessed for other conditions. When Dr. Durant told her that the treatment plan on discharge required feeding the minor every three hours and waking him if necessary, she repeatedly refused.
Dr. Isakson, the minor's treating physician, said the minor had been doing well since his discharge from the hospital. He had gained weight steadily in foster care, reaching 15 pounds two ounces by June 4, 2009, with no vomiting or diarrhea. His previous health status was due to a "feeding issue."
Mother's ex-husband, J.B. said he and mother had fought over their son E.B. (of whom J.B. now had full legal and physical custody). She had given J.B. false addresses and allowed E.B. to fall behind on his immunizations. When E.B. came to live with J.B., he acted as if he were starving and hid food in his room; he said he and his sister M.B. had always had to share food. Generally speaking, according to J.B., mother "has an issue, she likes to fight."
The Second Section 300 Petition (M.B.)
On June 9, 2009, the Department filed a petition under section 300, subdivision (b), as to M.B., a four-year-old female, alleging that mother had psychiatric or emotional problems which endangered the minor, as shown by the following: (1) Mother's affect continually changed during her April 12 interview with a social worker. (2) On May 27, 2009, after M.B. was interviewed by the social worker at school, mother brought law enforcement officers to school and accused staff of letting a stranger speak to her child--even though mother knew the interviewer was a social worker from Children's Protective Services (CPS). (According to the detention report, infra, this event happened on May 29, 2009.) (3) On June 5, 2009, mother twice denied the social worker access to M.B, and told law enforcement officers that social workers take away children and break up families.
The detention report added:
On May 18, 2009, CPS received a mandated reporter's referral for general neglect as to M.B. She had told another four-year-old to lick her privates; another time, she was overheard telling a boy that her "boyfriend" had ripped off her panties and bra; another time, she was caught posing like a model, pulling her shirt up and her pants down. Mother admitted letting M.B. watch "America's Top Model."
On May 19, 2009, the mandated reporter called again, saying that M.B. was still acting inappropriately and would benefit from counseling.
On May 21, 2009, a social worker left mother a message that the social worker needed to see M.B. in the home and mother should call back to schedule an immediate appointment. Apparently, mother did not do so.
On May 26, 2009, the social worker met with M.B. at school. M.B. asked if the social worker was "the one who took the baby from the hospital" and said the doctors had lied about mother's care of the baby. She also spoke disrespectfully of her alleged father, J.B., calling him "fat" and "gross." She kept trying to sit in the social worker's lap, even though she was told to sit in a chair. Before the social worker left, M.B. asked for a hug and puckered her lips as if wanting to be kissed on the mouth. However, she denied any inappropriate conduct.
On May 28, 2009, the social worker visited mother's home. Getting no answer to her knock, she left a business card for mother requesting a phone call.
On May 29, 2009, CPS received another mandated reporter's referral as to M.B., alleging general neglect and emotional abuse. M.B. was observed to have two 2-inch-long scars and other smaller scars on her thigh. She said first she had burned herself, but then said mother had burned her by ironing M.B.'s pants when she was wearing them.
On the same date, school staff told the social worker that mother had come to school, upset that staff had let a "stranger" talk to M.B. there, even though staff explained it was a CPS social worker. Mother later returned to the school with law enforcement officers, having told them the same story. Mother also left a voicemail message telling the social worker to communicate in the future through mother's attorney.
On June 5, 2009, the social worker tried to contact M.B. at school, but she was not there. Mother agreed to bring her to the Child Welfare Office, but came in later without her. Accompanied by law enforcement, the social worker went to the home to contact M.B., but mother would not let her in, though she allowed law enforcement officers in. M.B. told the law enforcement officers that CPS takes children away and breaks up families.
After reviewing mother's Child Welfare case file on June 8, 2009, the social worker concluded that mother's unaddressed emotional or mental health problems and refusal to allow the Department access to M.B. put the minor at substantial risk of physical harm, abuse, or neglect.
The Initial Hearing on the Petition
On June 12, 2009, the juvenile court found that J.B. was M.B.'s adjudicated father. Mother requested a contested detention hearing.
The Detention Hearing
On June 22, 2009, the juvenile court held the contested detention hearing and ordered the minor's continued detention.
The First Amended Section 300 Petition (E.E., Jr.)
On June 26, 2009, the Department filed an amended section 300 petition as to E.E., Jr., adding the allegation that mother's psychiatric or emotional problems (as described in the petition concerning M.B.) put him at risk. Mother requested a contested jurisdiction/disposition hearing.
The Second Jurisdiction/Disposition Report
The jurisdiction/disposition report as to M.B., dated July 9, 2009, recommended that the minor be adjudged a dependent of the juvenile court and remain in out-of-home placement, and that the court provide reunification services to mother, including individual counseling and a psychological evaluation. The report also recommended declaring J.B. the presumed father, but not giving him custody at that time because M.B. was hostile to him.
The report stated, inter alia:
When mother came to the child welfare office without the minor on June 5, 2009, she evaded the social worker's questions, tried to interrogate the social worker, and claimed the minor was "with family" but would not give a name or location. After agreeing to bring the minor to her home to meet with the social worker and law enforcement that evening, mother arrived at home without the minor; an unknown female brought her later. Asked how the minor got the scars on her leg, mother said they came from an injury at school, but did not explain further.
On July 3, 2009, when the social worker called mother to interview her about the current matter, she answered the phone but insisted the social worker leave a message. Later, mother called back and left a message to "direct any questions to the attorney." On the same date, the minor told the social worker that her scars came from an injury at school, but gave no further details.
On May 29, 2009, the minor's pediatrician, Dr. Deriggi, told the social worker that mother had brought the minor to the office in November 2008 because of increased bedwetting and nail-biting. Although Dr. Deriggi considered these behaviors normal, especially just after the birth of a new sibling, mother seemed "excessively concerned." She insisted, without saying why, that he conduct a vaginal examination of the minor. She also made the unusual demands that there be a chaperone and a nurse in the room, along with herself, while he did the exam. The exam proved normal. Nevertheless, mother insisted the minor see a specialist for her bedwetting and asked what the doctor considered "inappropriate" questions. Though there was no medical reason for the minor to see a specialist, at mother's insistence Dr. Deriggi referred the minor to a nephrologist, with an appointment scheduled for May 26, 2009. Mother did not show up for the appointment.
Also on May 29, 2009, school staffers told the social worker that when they repeatedly explained to mother that a CPS social worker, not a stranger, had talked to the minor at the school, and that they were required to report suspected child abuse, it seemed as if she did not hear what they were saying.
The minor was doing well in her foster home.
The First and Second Amended Section 300 Petitions
On July 24, 2009, the Department filed a first amended petition as to M.B. and a second amended petition as to E.E., Jr.
The Contested Jurisdiction/Disposition Hearing
The juvenile court held the contested jurisdiction/disposition hearing as to both minors beginning on July 30, 2009, and ending (after several continuances) on August 11, 2009. Mother was called to testify by the minors' counsel. Mother called Dr. Isakson and social worker Hernene Cannon-Davis on her behalf.
When mother began testifying, she repeatedly answered questions about meetings with hospital staff with some version of the formula: "I'm not looking at the medical records, so I wouldn't be able to confirm or deny that." When she used the same formula to answer the question whether she recalled someone's name, the juvenile court ordered her to answer the question asked. Thereafter she frequently employed this formula, but at other times could recall what was in the medical records without looking at them.
Throughout mother's testimony, she argued and fenced with counsel. For instance, when asked: "Based on your baby's weight on February 10th what were you instructed to do?," she replied: "What was his weight on the 10th of February?" Shortly afterward, counsel noted that mother was smiling when she answered his questions; when he asked why, she replied: "I have that option." Asked whether she remembered getting a piece of paper that said not to give the child cow's milk before the age of one, she replied: "I remember a paper that said don't wake your baby up to feed them; they know when they want to eat."
Mother denied giving the infant treatment that did not follow the doctors' instructions, then admitted she gave him cow's milk without being instructed to do so. She also admitted diluting his formula even though a doctor had instructed her not to do so. She admitted that on April 3, 2009, Dr. Villalobos told her to give the infant 24 ounces of Nutramigen every 24 hours and that she stopped doing so on April 5 because "[h]e was drinking cow's milk." She admitted she told Dr. Villalobos on April 6 that the infant was having diarrhea and that the doctor told her to bring him to the emergency room, but claimed at first she could not recall the "exact verbiage" why the doctor had directed her to do that. Finally, however, she recalled that the doctor said, "he was in no condition to handle diarrhea at home."
Asked why the infant was not sent home with her after the hospital discharged him, mother claimed to know only that it was for "[t]he reasons stated in the medical records" which she could not recall without seeing the records. She admitted she had read the social worker's report, but claimed it did not tell her anything more than what she already knew.
Asked whether she thought the infant was in good medical condition during the two days before he was hospitalized, mother repeatedly claimed she could not answer, even after the court ordered her to do so. The court then said: "You may be unwilling to answer the question, Ms. E[.] You are a very intelligent woman who is capable . . . of answering the question. You may answer yes, or you may answer no. Did you believe he was in a good medical condition on April 4th and April 5th?" This time mother said: "I don't know[.]"
When the questioning turned to M.B., mother was equally evasive and argumentative. Asked whether she had demanded that M.B. receive a vaginal exam, she renewed her claim that she could not "confirm or deny that" because she did not "have the medical records to refer to[.]" Told that this question did not concern medical records, she replied: "It does. It's a medical question. It's pertaining to her doctor and a visit."
Asked about the incident when she accused M.B.'s school of letting a stranger speak to M.B., mother claimed--contrary to school staff members' statements--that the school never notified her the person was a social worker.
Asked whether M.B. and E.B. hoarded food in her home, mother said: "What do you mean by hoard food?" When counsel tried to follow up, the court observed that mother could not answer because she did not know what "hoard" means. Mother said she knew what "hoard" meant; the court said: "Then you should have answered the last question, ma'am." Counsel again asked whether the children hoarded food in her home; mother again replied: "What do you mean by hoard food?"
Under questioning by her own counsel, mother admitted that she had refused to let a social worker into her home because, "I don't know what CPS does as it pertains to coming in the home and looking around. There was no basis for that."
Dr. Isakson testified that when the infant was hospitalized, his weight put him off the charts, "way below the 5th percentile," but he had steadily gained weight since being taken into protective custody. He had a milk intolerance, but not an allergy. After reviewing the medical records, Dr. Isakson still believed the minor was hospitalized because he was not being fed properly. The records also showed that Dr. Durant, Dr. Villalobos, and an inpatient pediatrician, Dr. Torres, shared that opinion.
Hernene Cannon-Davis, the social worker who supervised mother's visits with the minors, testified that the quality of the visits was good.
After hearing argument, the juvenile court made its rulings.
As to jurisdiction, the court struck the petition's allegation that mother had psychiatric or emotional problems because the Department had not presented a psychological evaluation or other sufficient evidence to support it. The court then sustained the petitions as amended. The court went on to find:
The infant was hospitalized because he had not been fed properly, and mother was responsible for his care and feeding at that time. Mother failed to give the doctors clear and accurate information about the infant. Mother admitted she had not followed the doctors' orders. She was not honest with them and did the opposite of what she was told.
Mother "put [M.B.] in the middle of a police investigation based on lies to police officers." Mother also subjected M.B. to unwarranted medical procedures and failed to explain to M.B.'s doctor why she needed a vaginal exam.
Thus, both minors had had "unwarranted and inappropriate medical interventions simply because their mother was unwilling to cooperate with medical providers and with the offers for informal services."
Furthermore, mother's conduct in court, as with the medical professionals, showed she was more concerned about "engaging in debate or arguments" than about the minors' best interests. "The idea of her attempting to one[-]up the lawyers [as one counsel suggested] was without any doubt probably a kind assessment of the mother's demeanor. The Court's assessment is that the mother, frankly, lied when she declined to answer questions professing that she was unable to provide answers as to her information or belief without reviewing the medical records." Her conduct "was deliberately obtuse, was recalcitrant, was obstreperous to the point where she was interfering with the Court's attempt to administer justice."
Mother's testimony actually made the Department's case: her "lack of candor and lying" in court matched the Department's account of her conduct. She claimed she did not know why the infant was not released to her care, but then said, "she regretted telling the doctor she would not wake [the infant] up to feed him because that is what resulted in the child's removal from her." Her answers to the questions about hoarding food were "deliberately obtuse." Mother "was unconvincing in the eyes of this Court when she attempted to look bewildered when she was asked the question as to why Child Protective Services was involved in [M.B.]'s life." When engaged in "debate" with the lawyers, mother was smiling, "smirking at counsel, pursing her lips, providing counsel with pointed stares[.]" For all these reasons, mother "had very little, if any, credibility with the Court."
Finally, "there's absolutely not a scintilla of evidence in front of me from which the Court could find that [mother] would modify her behavior now and begin to comply with either requests or directives of the Court or the Department, not only given her demeanor while she was testifying in court but given her professed lack of understanding to this point in time why either of her children are in foster care[.]"
Before the court ruled on disposition, mother's counsel recalled her to the stand. She testified that she would continue participating in parenting classes and individual counseling even if the minors were not returned to her. She was willing to do any service ordered by the court or recommended by the Department. She would follow all directives of the court, the social worker, and the medical professionals. She had not been sufficiently open-minded and willing to listen to others' opinions, but she was trying to change that. The court's credibility finding "hurt." She had been extremely nervous when testifying.
Father's counsel argued that he should receive reunification services under section 361.5, subdivision (c), despite the statutory grounds for bypassing them, since mother would receive services and father would be joining her after he got out of prison. It would benefit the minors for father to receive services because "[t]his is a family. They want to try to be a family."
The juvenile court adopted the findings and orders recommended by the Department, including an amendment granting the Department's request for a psychological evaluation of mother for the purpose of tailoring services. The court denied reunification services to father because, in light of his violent felony conviction, he had to show clear and convincing evidence granting services would be in the minors' best interests and he had not done so. The court also responded to mother's statement about the court's credibility finding, noting that what mother displayed was not nervousness but a deliberate refusal to answer questions even when ordered to do so.
The Jurisdictional Findings
Mother contends there was insufficient evidence to support the juvenile court's finding that the children had suffered, or were in substantial risk of suffering, serious harm in her custody. Father joins in this contention. We disagree.
"Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness caused by the parent's inability to provide regular care for the child because of the parent's mental illness, developmental disability or substance abuse. A jurisdictional finding under section 300, subdivision (b) requires: '"(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) 'serious physical harm or illness' to the child, or a 'substantial risk' of such harm or illness." [Citation.]' [Citations.] The third element 'effectively requires a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur).' [Citation.]" (In re James R. (2009) 176 Cal.App.4th 129, 135 (James R.).)
"Evidence of past conduct, without more, is insufficient to support a jurisdictional finding under section 300. There must be some reason beyond mere speculation to believe the alleged conduct will recur. [Citation.]" (James R., supra, 176 Cal.App.4th at p. 136.)
We review a challenge to the sufficiency of the evidence to support a jurisdictional finding under the substantial evidence standard, resolving all evidentiary disputes in favor of the court's rulings and drawing all reasonable inferences to support them. (In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451.)
Viewed most favorably to the judgment, the evidence showed: E.E., Jr., suffered physical harm in mother's care due to her failure to understand or follow medical directives and her apparent belief that she was better qualified than the doctors to decide the course of treatment. M.B. may have had a history of hoarding food, had suffered mysterious scarring on her leg, and had been subjected to unnecessary and intrusive medical procedures at mother's unexplained whim. Mother habitually opposed or subverted the recommendations of experts, whether doctors, school staff, or social workers, as to the minors' well-being, and nothing she told any such experts could be relied on. Even on the witness stand, she was more concerned with "one-upping" the attorneys questioning her than with giving a consistent and credible account of her actions.
Despite her last-minute professions after the jurisdictional ruling, the juvenile court could and did reasonably conclude that mother was still subject to the mental or emotional difficulties which produced this pattern of conduct, and which had already put the minors at substantial risk of physical harm. Though the court deleted the allegations of mother's psychiatric or emotional problems from the petitions because the Department had not yet obtained a psychological evaluation, the court showed its concern on this issue by ordering such an evaluation. This evidence was sufficient to support the court's jurisdictional findings. (James R., supra, 176 Cal.App.4th at pp. 135-136.)
Mother asserts the court should have discounted the past harm suffered by E.E., Jr., because conditions had changed by the time of the jurisdictional/dispositional hearing: he was gaining weight steadily and suffering no further health problems, the issues that had caused mother's conflict with the doctors "would not reoccur in the future because E.E.[, Jr.,] had grown past them," and mother's postremoval conduct as to visitation and doctor's appointments showed she would act differently in the future. These arguments lack merit. E.E., Jr., was now a normal, healthy baby only because he had been removed from mother's custody and placed with foster parents who followed medical advice. Mother's history of rejecting or disregarding that advice made it foreseeable that if E.E., Jr., were returned to her custody, she would react to any new health issue as she had done before. And her record as to visitations and doctor's appointments was too recent and short term to reassure the court that she had truly changed her thinking, especially when set against her "lack of candor and lying" on the witness stand.
Mother also asserts that the evidence failed to show any harm M.B. might have suffered was attributable to mother. This claim depends on ignoring much evidence and viewing the rest in the light most favorable to mother, contrary to our standard of review.
Rather than address the evidence that M.B. might have been inadequately fed when mother had custody of both of the older minors, mother asserts--citing only her own testimony--that "[w]hile M.B. was in [mother]'s care, she was fed ample food[.]" But the juvenile court found her testimony was not credible, and we may not reweigh that finding. Mother's refusal to answer the question whether M.B. had ever hoarded food, even after the court ordered her to do so, strongly suggested that the answer was "yes."
As to mother's clash with the Department about access to M.B. and her demand that the social worker talk only to her attorney, she asserts (again citing only her own testimony): "In light of [mother]'s troubles with the agency, it is understandable that [mother] would want a neutral party to mediate. Rather than accommodate the request, the agency bypassed [mother] by talking with M.B. at school." But mother's attorney, as her advocate, was not a "neutral party." Furthermore, mother misstates the chronology: she did not refuse to talk to the social worker or to let the social worker see M.B. at home until after the social worker had seen her at school. The school interview took place on May 26, 2009; mother complained to school officials and the police about it on May 29; mother left the social worker a voicemail message on July 3 demanding future contact only through her attorney.
Finally, mother ignores the fact that even after she was told over and over that the person who talked to M.B. at school was a social worker, not a "stranger," she persisted in claiming otherwise--further evidence of the irrational obduracy she showed in dealing with E.E., Jr.'s, doctors. The court could reasonably find, in light of the harm this obduracy had caused E.E., Jr., that it also created a substantial risk of physical harm to M.B.
Mother asserts there was no evidence she inflicted the scars on M.B.'s leg. On the contrary: M.B. said mother did so and explained how. The fact that M.B. later changed her story to echo mother's vague and unsupported claim of an accident at school did not disprove the charge.
Mother appears to assert that her demand that M.B. receive a medically unnecessary and intrusive vaginal examination, followed by unnecessary referrals to specialists, all for ordinary bedwetting, did not show that M.B. was physically harmed or at substantial risk of physical harm. What it did show, however, was that, just as with E.E., Jr., mother insisted groundlessly that she knew better than the doctors what kind of treatment her children needed. Since that attitude caused physical harm to E.E., Jr., the court could reasonably find that it also put M.B. at risk of harm.
Finally, mother asserts: "[T]he facts showed [she] was an adequate mother." The "facts" she cites come mostly from her own testimony, which the juvenile court found not credible. Aside from that, she cites only the statement of social worker Cannon-Davis that during mother's visits with the minors, M.B. acted like a typical five-year-old child--from which mother jumps to the conclusion that she "did a lot of things right over the intervening five years as a single parent." Even if so, that would not refute the allegations against her that the court found true.
In re Paul E. (1995) 39 Cal.App.4th 996, on which mother relies, is inapposite. The court there found both that the minor had suffered no ill effects from the substandard conditions in his parents' home and that "[t]he specific hazards which . . . led to Paul's removal are trivial to the point of being pretextual." (Id. at p. 1005.) Here, the problems which led to the minors' removal had already caused actual physical harm to E.E., Jr., and possibly also to M.B., and mother's mindset posed a substantial risk of further harm.
The Dispositional Orders
A. Removal of the minors from the parents' custody
Mother (joined by father) contends there was insufficient evidence to support the order removing the minors from her custody. Again, we disagree.
Under section 361, subdivision (c)(1), to obtain the removal of a minor from the parent's custody the agency must show by clear and convincing evidence that there is a substantial danger to the minor's physical health, safety, protection, or physical or emotional well-being, and no reasonable way exists to protect the minor from these dangers in the parent's home. (In re Jasmine G. (2000) 82 Cal.App.4th 282, 284, 288.) But even though the juvenile court was required to apply the clear and convincing evidence standard, we review its ruling for substantial evidence. (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.)
Given what we have already said about the danger to the minors created by mother's past conduct and attitudes, we need say little more here. Mother's own testimony was the best evidence before the juvenile court that she had not yet changed the attitudes that caused her conduct. The court expressly found in the jurisdictional phase that there was "not a scintilla of evidence" mother was ready to comply with the court's or the Department's directives, given her demeanor in court and her claim that she did not understand why the minors had been taken from her custody. Since the court could have no confidence that mother would comply with the court's or the Department's directives, the court was compelled to find that no possible measure short of removal from mother's custody could ensure the minors' safety.
B. Denial of reunification to father
Father contends the juvenile court abused its discretion by denying him reunification services, even though he is a convicted violent felon, because to grant him services would have been in the minors' best interest. (§ 361.5, subd. (c).) The court did not abuse its discretion.
Where a parent has been convicted of a violent felony, as here, the juvenile court may deny reunification services. (§ 361.5, subd. (b)(12).) The statutory scheme allows the court to grant services to one parent while denying them to the other. (In re Jesse W. (2007) 157 Cal.App.4th 49, 59.)
To show that services should be granted under section 361.5, subdivision (c), despite the existence of statutory grounds for a bypass, a parent must show by clear and convincing evidence that reunification would be in the child's best interests. (In re Ethan N. (2004) 122 Cal.App.4th 55, 66-67.)
We uphold the court's exercise of its discretion unless arbitrary, capricious, or patently absurd. (In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1068.)
It was not arbitrary, capricious, or patently absurd for the juvenile court here to deny services to father, because he adduced no evidence whatever that it would be in the best interests of the minors, who have never even seen him, to "reunify" with him.
The judgment (jurisdictional and dispositional orders) is affirmed.
RAYE, P.J. BLEASE ,J.
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