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In Re J. S. et al., Persons Coming Under the Juvenile Court v. R. V

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


March 11, 2011

IN RE J. S. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
R. V., DEFENDANT AND APPELLANT.

(Super. Ct. Nos. JD230540, JD230541)

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

In re J.S. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

R. V., the mother of four-year-old J. S. and six-year-old K. V., appeals from a disposition order of the Sacramento County Juvenile Court adjudging the children dependents of the court, removing them from mother's custody, and denying mother reunification services.

On appeal, mother contends the evidence was insufficient to support the jurisdiction orders, the disposition orders removing the children from her custody, and the bypass of reunification services. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A 1999 Dependency Of Half Sibling

In December 1999, Child Protective Services (CPS) received a referral alleging general neglect and caretaker incapacity regarding then three-day-old S. V., the half sibling of J. S. and K. V. The referral alleged that mother and S. V.'s father had developmental disabilities and that both had admitted that they were "neither ready nor capable of raising a child." The referral was substantiated.

The present jurisdiction/disposition report describes the December 1999 referral as follows: "A CPS referral for neglect . . . states the mother is moderately mentally retarded (IQ range of 46-60) with a seizure disorder that is not under control. . . . Hospital staff believes mother needs 24-hour monitoring with the child, or the child should not live with the mother because of her mental limitations. . . . [T]he mother was told that she needs to feed the baby every 3 hours. The mother was then asked, if the baby was fed at 8:00 a.m., when would the next feeding be? The mother's response was 2:00 p.m. Disposition: Substantiated."

On December 17, 1999, the Department of Health and Human Services (department) filed a petition alleging the half sibling came within juvenile court jurisdiction pursuant to Welfare and Institutions Code*fn1 section 300, subdivision (b). The petition alleged in relevant part: "b-1. The child's mother, [R. V.], is unable to provide regular care, supervision, protection, and the basic needs of the child due to her developmental disability, in that [she] is moderately mentally retarded with an I.Q. range of 46-60. In addition, she has a seizure disorder which is not under control. [¶] . . . [¶] b-3. The child's mother, [R. V.], and alleged father, [F. B.], have a history of domestic violence which have [sic] included incidents that required law enforcement to respond to their residence. These incidents occurred while the child's mother was pregnant."

In early 2000, the juvenile court sustained the petition and declared S. V. a dependent child of the court. In October 2000, mother's reunification services were terminated because she had failed to make substantial progress in her case plan. In April 2001, mother's parental rights to S. V. were terminated.

B Prior Incidents Involving The Present Children

In November 2006, a law enforcement officer brought mother to a mental health treatment center because she was having hallucinations of her two-year-old child stabbing her two-month-old baby. The treatment center petitioned for an extended stay because mother was gravely disabled. Four days later, CPS received a referral for general neglect and caretaker incapacity. The referral included allegations against the children's father, who is not a party to this appeal. CPS disposed of the referral as "unfounded," but there is no indication that this resulted from any infirmity in the treatment center's assessment of mother.

On October 20, 2009, CPS received a referral alleging sexual abuse of J. S., who was then age three. The allegation appears to have been based on an injury to the back of J. S.'s head, which mother and father had explained in somewhat different ways. The reporter stated she was unable to ask J. S. what had happened, because J. S. cannot communicate due to language delays. The disposition of this referral is "unknown."

The social worker's review of school records showed that on this same date, K. V. was "suspended [from school] for saying, the 'f' word 20 times in a 15 minute period . . . 26 times in a 30 minute period." K. V. also asked his teacher several times, "'won't you fuck me[?]'"

On October 29, 2009, CPS received a referral regarding neglect and sexual abuse from a reporter who was changing K. V.'s diaper. CPS disposed of the referral as "unfounded."

C Present Incident

During a counseling session on January 27, 2010, K. V. rapidly pulled down his diaper, got on his back, raised his feet nearly to his ears, spread his bottom, and asked his mother and therapist, "'you want fuck my butt[?]'" The next day, CPS received a referral alleging general neglect and failure to protect.

On February 9, 2010, father informed a social worker that "'he thinks' he and the mother knew who could have 'hurt' the children." On February 11, 2010, the department placed the children in a protective emergency placement. Five days later, the children's foster parent witnessed J. S. on top of K. V. and heard them "making noises as if they were engaging in a sexual act." Early the next month, the foster parent observed J. S. kissing K. V. on the mouth in an inappropriate manner.

D Original Petitions

In March 2010, the department filed original dependency petitions for both children alleging failure to protect (§ 300, subd. (b)), sexual abuse (§ 300, subd. (d)), and abuse of sibling (§ 300, subd. (j)). At an initial hearing in March 2010, the court ordered the children's continued detention.

E Jurisdiction And Disposition

According to the detention and jurisdiction/disposition reports, on March 9, 2010, the parents requested that the children be removed from their care. Mother later disputed that she had requested or agreed with the removal. At trial she claimed the social worker had threatened to take the children regardless of whether she agreed.

The foster father reported that J. S. was "picking up on [K. V.'s] sexual behavior habits." Furthermore, the foster mother had observed J. S. rubbing his genitals, rolling over onto a toy, humping the toy, turning and sitting up, and placing his hands down his pants.

The foster parents reported they "have seen [J. S.] approximately five times lean over and kiss [K. V.] and [K. V.] will lay back and put his legs back and play with his 'anus' with his clothes on."

Lisa Wright, K. V.'s Alta Regional Center worker, reported that the parents sent K. V. to his special education class "always hungry, and usually with poor hygiene." Wright had observed K. V. placing his hands down the back of his pants after a bowel movement. During class, K. V. engaged in biting, constant wandering around the classroom, screaming and shouting, and ignoring simple directions. Due to his behavior and diagnosis of mild mental retardation, K. V. requires constant direction, constant supervision, and positive reinforcement. Wright explained that K. V.'s speech consists of echolalia, which means that he simply repeats what he hears.

K. V.'s teacher, Cozane Newbold, advised Wright that K. V. has been known to state, "Fuck me in the ass," "cum in my hand," "fuck you on the rug," "Fuck you, Michael," and "do you want to fuck me." Wright told the social worker that this is "learned behavior from environments, persons in [the] household and or pornographic movies."

K. V.'s therapist reported that she has been working with him and his family since August 2009. According to the therapist, K. V. started exhibiting behavioral problems at age two and one-half. She diagnosed him with disruptive behavior disorder and mental retardation. Thereafter a psychiatrist diagnosed him with disruptive disorder with attention deficit hyperactivity disorder. The psychiatrist prescribed medication for K. V. in February 2010.

During a session on how to respond to K. V.'s disruptive behaviors, the therapist heard K. V. yelling "'Fuck You'" to the mother and engaging in sexualized behavior. K. V. quickly pulled down his pants and diaper, got on the floor, put his legs over his head, put his hands on his butt cheeks to spread open his bottom, and stated, "[y]ou want fuck ass." Mother's friend, "Lisa," who was present during the session, told the therapist that "[K. V.] does that."

Lisa also informed the therapist that the children's father punched a hole in the wall. When the therapist tried to talk to mother about domestic violence, mother was "very dismissive, depressed, and protective of the events in the home." She said to the therapist, "'that happened no more, that doesn't happen no [sic] more. Everything is fine.'"

The therapist noticed that mother does not respond to the children's needs or to their requests for food or diaper change. Instead, she dismisses the requests by stating, "'you already ate, or you already went poo poo.'"

Mother's Alta Regional Center worker stated that mother was diagnosed with moderate mental retardation and has been an Alta client since August 1985. He also stated that mother needs support from independent living skills workers to make medical appointments for the children; that such workers are available to guide her; that mother has seizures and does not take her medication; that mother is easily influenced by the maternal grandmother; and that, according to mother, the grandmother has advised her that she does not need medication.

The father's Alta Regional Center worker reported that the father became eligible for Alta services in December 1983. Father is diagnosed with mild mental retardation and has an IQ of 58. The father does "the bulk of the parenting in the household," and he makes sure that the children attend school and medical appointments.

Mother told the social worker that she can take care of the children: she cooks for them, takes them to medical appointments, bathes them, and takes them to the bus stop for school.

Mother claimed that K. V. had learned to say sexual words from the father's adult son, Charlie, even though he "'hardly comes to the house.'" She claimed that neither child had observed the parents' once-per-week sexual activity. Father countered, "'I have not had sex for over four years, I don't want it and I am busy taking care of the kids. [Mother] cheated on me last year and our love is not really there. I am just around for the kids.'"

In April 2010, amended petitions were filed alleging that the children came within juvenile court jurisdiction under section 300, subdivisions (b)*fn2 and (j)*fn3 . That same month, the juvenile court appointed a guardian ad litem for mother.

Mother was the only witness at the contested jurisdiction and disposition hearing in June 2010. She testified that the children had not been abused. She has cared for the boys since they were born. After recognizing that something was wrong with K. V., she took him to a doctor who diagnosed him with attention deficit disorder. When the department initially removed the children, she did not want them to be taken away from her. However, she relented after the social workers threatened to remove the children unless she attended a meeting.

Mother testified that she had just graduated from an anger management class. She had not started a parenting class because she did not know where to find one and the social worker would not return her telephone calls. Mother was willing to participate in other services. She had been visiting J. S. one hour twice per week but had not been contacted about visiting K. V. An independent living services worker and a "STEPS" worker came to mother's home a few times per week to help her with medical appointments, and the maternal grandmother assisted with grocery shopping.

The juvenile court found by a preponderance of evidence that the amended petitions were true. The court found that an individual had been allowed to remain in the home after having used inappropriate language and after having viewed inappropriate television.*fn4 The court also noted there was evidence from multiple sources that mother had not been responsive to the children's needs. The court explained that when considering the section 300, subdivision (b) allegations it does not need to wait until a child suffers serious physical harm or an illness. The court found that the department had pleaded and proved a substantial risk that injury would occur as a result of the parents' disabilities resulting from their developmental delays.

Regarding disposition, the court found by clear and convincing evidence that the children cannot adequately be protected without removing them from parental custody. The court found there was clear and convincing evidence that mother's reunification services could be bypassed pursuant to section 361.5, subdivision (b), paragraphs (10) and (11), and there was no clear and convincing evidence that reunification services would benefit the children. Mother timely filed a notice of appeal.

DISCUSSION

I Substantial Evidence For Jurisdictional Finding

Mother contends the jurisdictional findings under section 300, subdivisions (b) and (j) are not supported by substantial evidence. We are not persuaded.

"In reviewing the sufficiency of the evidence on appeal, we look to the entire record to determine whether there is substantial evidence to support the findings of the juvenile court. We do not pass judgment on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. Rather, we draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile court's order, and affirm the order even if there is other evidence that would support a contrary finding. [Citation.] When the [juvenile] court makes findings by the elevated standard of clear and convincing evidence, the substantial evidence test remains the standard of review on appeal. [Citation.] The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the order. [Citations.]" (In re Cole C. (2009) 174 Cal.App.4th 900, 915-916.)

Mother contends the evidence was insufficient because there was no specific incidence of harm to the children. However, as the juvenile court noted in its ruling, it does not have to wait until a child, who is at risk, is actually harmed before taking jurisdiction. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) The issue is whether the children are at substantial risk of serious physical harm or illness. (In re Heather A. (1996) 52 Cal.App.4th 183, 194-196.)

Mother claims the department failed to show that her mental disability was tied to a substantial risk of harm to the children. (Citing In re David M. (2005) 134 Cal.App.4th 822, 829.) However, the evidence allows an inference that mother's disability prevented her from adequately recognizing, and responding to, the children's cues for assistance and this lack of response creates a risk of future harm. As the juvenile court noted, K. V.'s behavioral problems became noticeable at age two and one-half, but mother did not succeed in obtaining therapy for him until he reached age five. This case is not at all like In re David M., in which the mother's mental and substance abuse problems were not tied to any actual harm or risk of harm to the child. (In re David M., at p. 822.)

Mother claims K. V.'s repetition of what he hears and his mimicking of sexual behavior does not put him at risk of serious physical harm or illness. She claims she recognized these behaviors and their significance, and, as a result, "the adult [whom K. V. mimicked] is no longer in the home" and no longer poses a current risk. These claims miss the mark.

There was no evidence that father's adult son, Charlie, physically had demonstrated sexual behaviors such as pulling down underwear, raising legs, or spreading buttocks. Nor was there evidence that K. V. was capable of learning such behaviors from spoken conversation as opposed to from personal observation. In any event, Charlie's opportunity to model such behaviors may have been limited. As mother admitted to the social worker, Charlie "'hardly [came] to the house.'"*fn5

K. V.'s mimicking of sexual behavior supports a finding of current risk in that mother could not, or would not, correctly identify and protect K. V. from the person or persons whom the sexual behaviors had been learned. It is not necessary to consider whether K. V.'s echolalia further supports this finding.

The jurisdiction/disposition report stated that Lisa Wright, the Alta Regional Center worker for K. V., "stated there are concerns of possible autistic behaviors. She stated the parents were requested to follow up with assessments but failed to do so." The amended petition alleged: "Further, the parents have not followed through with assessments recommended by [K. V.'s] Alta worker." Mother claims this failure "does not rise to the level of a substantial risk of serious physical harm or injury." Even if she is correct, the failure to assess K. V. for autism is part of the parents' pattern of inability to provide for the children's basic needs.

Mother contends "there was strong evidence to contradict the Department's allegation that the parents were not able to adequately supervise [K. V.]" However, the juvenile court sustained this allegation, and substantial evidence in the record supports it. The fact that "other evidence . . . would support a contrary finding" does not warrant reversal of the judgment. (In re Cole C., supra, 174 Cal.App.4th at p. 916.)

Mother contends the petition's sole allegation regarding J. S. was insufficient to sustain juvenile court jurisdiction. In her view, "[t]he only allegation in the petition regarding [J. S.] was that [mother] needed some prompting to follow through with feeding him and changing his diapers." We disagree.

Mother misreads the disputed allegation as stating a limitation when in fact it states only an example. The petition alleges: "The mother needs to be prompted to follow through with attending to the children's basic needs such as feeding the children and changing their diapers." (Italics added.) In this passage, feeding and changing are mere examples; they are not the "only" alleged deficiencies. If the young children's basic needs are unmet, then surely they are at risk of serious physical harm or illness.

Mother next claims the evidence was insufficient to support juvenile court jurisdiction under section 300, subdivision (j) (abuse of sibling). Because the evidence under subdivision (b) was sufficient, it is not necessary to consider this point. (In re Andy G. (2010) 183 Cal.App.4th 1405, 1415, fn. 6; In re Tracy Z. (1987) 195 Cal.App.3d 107, 112-113.)

In any event, the point fails for reasons we already have set forth. Mother concedes that there was sufficient evidence that sibling S. V. had been a dependent child and that mother's parental rights to S. V. had been terminated. However, relying on her previous argument, she claims there was insufficient evidence that the present children were at substantial risk. We have already rejected this claim. The jurisdiction orders are supported by sufficient evidence.

II Substantial Evidence For Disposition Order

Next, mother contends the disposition order removing the children from her custody is not supported by substantial evidence. In her view, the parental home did not pose a risk of substantial danger to the children. Moreover, there were alternative means by which the children's physical health could be protected. We disagree.

To support an order removing a child from parental custody, the court must find clear and convincing evidence that "[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 . . . physical custody." (§ 361, subd. (c)(1).)

Although the juvenile court makes removal findings by the elevated standard of clear and convincing evidence, the substantial evidence test remains the standard of review on appeal. (In re Cole C., supra, 174 Cal.App.4th at pp. 915-916.) The facts we have set forth in part I of the Discussion, ante, constitute substantial evidence that the children cannot adequately be protected without removing them from the parents' physical custody.

Mother contends "[a] very reasonable alternative to placing the children out of the home would have been to have the children remain at home while providing therapy, parenting classes and other services to [mother]." However, as we have explained, the source of the children's learned sexualized behaviors was unknown. (See part I of the Discussion, ante.) Until that source was identified and removed, the home environment needed constant monitoring, and no evidence suggested that this sort of service was available. Mother's reliance on In re Henry V. (2004) 119 Cal.App.4th 522, 529-530, which reversed a removal order because adequate services could be provided in the parental home, is misplaced. The disposition order is supported by substantial evidence.

III Denial Of Reunification Services

Finally, mother contends there is insufficient evidence to support the denial of reunification services pursuant to section 361.5, subdivisions (b)(10) and (b)(11). She also contends the juvenile court abused its discretion when it failed to order services under section 361.5, subdivision (c). Neither point has merit.

Section 361.5, subdivision (b) allows the juvenile court to deny reunification services if it finds clear and convincing evidence that one of several enumerated conditions exists.*fn6 To apply subdivision (b)(10), the court must find that the parent previously failed to reunify with a sibling of the child. To apply subdivision (b)(11), the court must find that the parent's parental rights to a sibling of the child have been terminated. Neither provision applies if the parent has made "a reasonable effort to treat the problems that led to removal of the sibling or half sibling." (Subd. (b)(10), (11).) Thus, in order to deny reunification under either subdivision, the court must find that the parent has not subsequently made a reasonable effort to treat the problems that led to removal of the child or termination of parental rights. (E.g., Cheryl P. v. Superior Court (2006) 139 Cal.App.4th 87, 96.)

An appellate court reviews a juvenile court's denial of reunification services for substantial evidence. (In re Brian M. (2000) 82 Cal.App.4th 1398, 1401.) If the reviewing court concludes that the juvenile court properly denied services under one of the two subdivisions, it is not necessary to consider whether services could also be denied under the other subdivision. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 76.)

As noted, the petition in S. V.'s case alleged in relevant part: "The child's mother, [R. V.], and alleged father, [F. B.], have a history of domestic violence which have [sic] included incidents that required law enforcement to respond to their residence. These incidents occurred while the child's mother was pregnant." Mother's reunification services were terminated in October 2000. Her parental rights to S. V. were terminated in April 2001.

In this case, the juvenile court found "by clear and convincing evidence that the mother comes within the provision of Section 361.5(b)(10) and subdivision (b)(11)." The court commented, "[w]hat's noticeable about the first petition relative to [S. V.] is that it contains allegations of domestic violence between the mother and that child's father, Mr. [B.] And the current report indicates a friend in the family household talking about the father punching holes in the walls and domestic violence being present, and the mother being non-responsive to that."*fn7

The juvenile court's remarks about the prior domestic violence and mother's failure to respond to the current domestic violence support its express finding that she comes within subdivision (b)(10) and (b)(11). The court could deduce that mother would not have failed to respond to the current violence had she made a reasonable effort to address and treat the issue subsequent to S. V.'s case. The court was not required to find that mother's low IQ prevented her from mounting any effective response to her current husband's violent acts.

Mother's reliance on In re Albert T. (2006) 144 Cal.App.4th 207 is unavailing. In that case, the juvenile court did not make an express subdivision (b)(10) finding, and the "otherwise silent" record failed to support an implied finding. (In re Albert T., at pp. 218-219.) Here, in contrast, the court made the express finding and made further remarks addressing record evidence that supported an implied finding. No error is shown.

Mother lastly contends the juvenile court abused its discretion when it failed to order reunification services pursuant to section 361.5, subdivision (c), which states in relevant part: "The court shall not order reunification for a parent or guardian described in paragraph . . . (10) [or] (11) . . . of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child."

The parent has the burden of showing that reunification would be in the child's best interest. (See In re Ethan N. (2004) 122 Cal.App.4th 55, 66.) In this case, the juvenile court stated it was "unable to find the best interest of the children will be served by the provision of services to the mother." A juvenile court's order denying services under section 361.5, subdivision (c) is reviewed for abuse of discretion. (In re Angelique C. (2003) 113 Cal.App.4th 509, 523-524; In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.)

Mother claims reunification services were in the children's best interest because: (1) she had been making efforts to regain her children; (2) she had completed an anger management class and was willing to participate in additional services; (3) she had a strong bond with the children, who had been with her for three and five years; (4) the children were very excited to see mother during visits; and (5) since father was receiving reunification services, the children would have a chance to reunify with both parents. In mother's view, these factors are sufficient to meet the elevated standard of clear and convincing evidence.

However, the jurisdiction/disposition report stated that reunification services would be detrimental to the children because mother has previously attempted services and was unsuccessful; and although mother states she misses the children and enjoys taking them to the bus, there is no evidence that the children are attached to her.

The juvenile court could find that mother did not meet her heightened burden of proof on the section 361.5, subdivision (c) issue. Denial of reunification services was not arbitrary, capricious, or patently absurd. There was no abuse of discretion. (In re Angelique C., supra, 113 Cal.App.4th at p. 523; In re Baby Boy H., supra, 63 Cal.App.4th at p. 474.)

DISPOSITION

The judgment is affirmed.

We concur: RAYE , P. J. HULL , J.


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