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In Re M.K. et al., Persons Coming Under the Juvenile Court v. R.H

January 24, 2012

IN RE M.K. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SHASTA COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
R.H., DEFENDANT AND APPELLANT.



(Super. Ct. Nos. 09JVSQ2824001, 09JVSQ2824101, 09JVSQ2824201, 09JVSQ2824301, 09JVSQ2824401, 09JVSQ2824501)

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

In re M.K.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The mother of M.K., L.K., C.K., B.G.K., B.S.K. and V.K. (the minors), appeals from the juvenile court's orders denying her request for modification and terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 388, 395.)*fn1

On appeal, mother contends the juvenile court erred by denying her modification request and by failing to find an exception to adoption based on her relationship with the minors. (§ 366.26, subd. (c)(1)(B)(i).) Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A dependency petition was filed by the Shasta County Health and Human Services Agency (the Agency) in November 2009 regarding the minors, ages three to eight, as well as their 12-year-old half brother,*fn2 based on the father's alcohol abuse and anger problems, the mother's inability or unwillingness to protect the children, and the parents' inability or unwillingness to provide a safe residence for the children or to meet their needs. The petition alleged that mother was aware of the father's alcoholism and violent tendencies but allowed him to reside in the home and care for the minors. In addition, the petition alleged that there were unsanitary conditions at the minors' residence and the minors had extremely poor hygiene.

According to the November 2009 detention report, eight-year-old M.K. reported that father "'drinks beer and gets drunk, yells, screams, punches the cupboards in the house, and hits the [minors] in the head.'" According to M.K., during the most recent episode, father became angry with four-year-old B.G.K. for not taking off his pajamas and getting ready for school. Father shook B.G.K. and screamed at him, "slammed [him] on the ground, hitting his head," and pulled off his pajamas, while mother screamed at him to stop. On the same morning, father became upset with M.K. for not changing out of shorts into pants. Father "'ripped his shorts off him,'" hit him on the head, and banged his head on the floor.

After interviewing three of the minors at school later that day, a social worker and two Redding Police officers went to the family's residence. The next day, M.K. told a social worker that after she and the officers left the residence, father "got drunk" and began yelling and punching the cupboards. Mother told father to quiet down, and when father continued to yell, M.K. went upstairs to tell mother. When M.K. came back downstairs, father "'punched him in the mouth,'" injuring his lip.

The detention report discussed the condition of the home and the minors' hygiene. The social worker noted that when she entered the home, there was a "very strong urine stench." One of the toilets was "brimming with soupy fecal matter accompanied by the smell of bleach." J.L. had been given the chore of emptying the feces and bleach mixture with his bare hands, using only two cups. One of the bedrooms "reeked of dirty clothing[ and] urine, and had [a] moldy sweat stench." V.K. had "a ripe moldy odor emitting from her person" that was so strong the social worker had to pull her vehicle over and vomit while transporting her to the foster care agency. M.K. "had a sour smell emitting from his body" when interviewed at his school. The twins, B.G.K. and B.S.K, reportedly regularly came to their Head Start program in dirty clothes and with "a strong smell of filth emitt[ing] from their bodies." In addition, they both had developmental and behavioral problems, including significant delays in speech and in their social interactions.

Father had a lengthy criminal history involving violence and alcohol abuse. This included a conviction in 2007 for willful cruelty to a child, after father assaulted the minors' half sibling, J.L. There had been numerous other law enforcement contacts with the family regarding the father's problems with anger control and substance abuse. Yet, the father did not feel he had a drinking problem and claimed he was not a violent person. Instead, father blamed the minors' half brother, J.L., for the involvement of the Agency, which father described as "'a bunch of crap.'"

There was a long history of Agency involvement with the family. There had been 11 prior referrals in Shasta County, including allegations of physical abuse, emotional abuse, and neglect, dating back to 2003. The most recent referral involved allegations of physical and emotional abuse by father on J.L. and M.K. in May 2009. The emotional abuse allegations were substantiated. Family services through the Agency were offered but refused by the parents.

Mother admitted that father had "a temper" but denied he abused the minors or her. With regard to the events leading to the minors' removal, mother acknowledged only that the father had been "'rough.'" Although mother said she was willing to have father move out if "necessary," she did not feel he was abusive or that she had failed to protect the minors.

In December 2009, the juvenile court sustained the allegations in the petition after a contested jurisdictional hearing and ordered reunification services for both parents.

The minors commenced counseling and were diagnosed with mental health conditions ranging from anxiety and adjustment disorder to posttraumatic stress disorder (PTSD) and "age-inappropriate" and "parentified" behavior. By the time of the 12-month status review report, the minors had begun to disclose additional incidents of abuse by father that had occurred while they were in his care, including reports that father hit mother. Father continued to display angry and intimidating behavior when he was given information he did not like or was challenged about his attitude. Nonetheless, mother had continued to live with him, maintaining she would have left if she had known his behavior would prevent the return of the minors. However, the report noted that, in February 2010, a social worker encouraged mother to consider living separately from father. At that time, mother indicated she would do that if it was necessary, but expressed concern about being able to "make it financially." She knew she would be eligible for HUD housing, but stated she did not know how she would make the car, insurance and other payments.

In December 2010, the father's visitation was terminated after he had an outburst toward the end of a visit, during which he yelled repeatedly in the minors' presence that the social worker was "'trying to get [them] adopted out.'" The minors had adverse reactions following the visit.

One day after the 12-month review hearing in December 2010, mother said she was going to divorce father and move to Washington. In early January 2011, when mother appeared for the visitation, she stated she had come from Washington on a bus to get there.

At a contested review hearing in March 2011, mother testified that, after learning the social worker was recommending termination of services, she left the father and moved to the state of Washington to live with her grandmother. Mother testified at the hearing that she was still looking for her own place to live in Washington.

Although mother maintained she had not had contact with the father since moving out of state, she also stated he appeared to be learning from his services. Mother testified she never viewed the father's behavior as abusive and felt his "primary issue" was that "[h]e yelled a lot" and would "throw things." She continued to describe the father's conduct leading to the minors' removal as "being rough."*fn3

Mother claimed that prior to learning of the social worker's termination recommendation, she thought she was supposed to work things out with father because couple's counseling was part of her case plan. However, the social worker testified that couple's counseling was added to the case plan at the six-month review because mother had chosen to remain with the father and the parents had already begun counseling on their own. The social worker explained that "as a matter of course, the [Agency] doesn't tell people to get divorced" and, instead, dealt with domestic violence situations in which the spouse chose to stay by recommending services to help teach the parent how to exercise better judgment. Mother was referred to classes for this purpose. According to the social worker, mother had been present during the father's displays of a "volatile temper" and "problems with authority," but she had not been able to reach the conclusion on her own that she needed to separate from him in order to protect the minors.

Following the testimony, the juvenile court terminated services and set the matter for a hearing pursuant to section 366.26 to select and implement a permanent plan for the minors. With regard to mother, the court noted that, at the jurisdictional hearing, the court had stressed to her that by allowing the father to remain in the home, she demonstrated she did not "fully recognize the problem." The court stated it was clear that mother still "wasn't getting it" and that she was not strong enough to protect the minors from the father. The court ...


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