Filed 7/15/14 In re E.M. CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

In re E.M. et al., Persons Coming Under
the Juvenile Court Law.


FRESNO COUNTY DEPARTMENT OF                                                           F068575
SOCIAL SERVICES,
                                                                       (Super. Ct. No. 13CEJ300051)
         Plaintiff and Respondent,
                   v.
                                                                                  OPINION
S.P.,
         Defendant and Appellant.

                                                   THE COURT*
         APPEAL from orders of the Superior Court of Fresno County. Houry A.
Sanderson, Judge.
         Conness A. Thompson, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Daniel Cederborg, County Counsel, Amy K. Cobb, Deputy County Counsel, and
Janelle Kelley, Assistant County Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Cornell, Acting P.J., Gomes, J., and Detjen, J.
          Appellant S.P. (mother) appeals from the juvenile court’s dispositional order
denying her reunification services as to her six-year-old son, E.M., Jr. and three-year-old
daughter, E.S.M., under Welfare and Institutions Code section 361.5, subdivision (b)(4)
(death of a child)1 because mother caused the death of their six-year-old sister J.M.
Mother contends the juvenile court abused its discretion in determining it was not in the
children’s best interest to offer her reunification services. We affirm.
                      PROCEDURAL AND FACTUAL SUMMARY
          Mother has four children, two teenage daughters, D.E. and R.E., and two small
children, E.M., Jr. (E.M.) and E.S.M., the subjects of this appeal. Mother had a fifth
child, a daughter, J.M., who died in February 2013 at the age of six. Mother’s boyfriend,
E.M., Sr. (father), is the father of J.M., E.M. and E.S.M. Mother and father have a long
history of domestic violence. However, prior to these dependency proceedings, the
family had no child welfare history.
          On the morning of Monday, February 4, 2013, J.M. was found unresponsive in
bed. The Friday before, J.M. was sent home early from school with the flu. Over the
weekend mother gave J.M. adult-strength NyQuil and ibuprofen every six hours. Mother
said she gave J.M. the “prescribed” dosage of the ibuprofen. She did not remember what
dosage of NyQuil she administered. The record reflects J.M. had cold- and flu-like
symptoms, but does not provide any information as to J.M.’s physical response to the
medication. Mother did not take J.M.’s temperature or consult a doctor. Mother gave
J.M. the last dosage of NyQuil around 8 p.m. on Sunday night just before putting her to
bed. A paramedic pronounced J.M. dead at the home and transported her to the coroner’s
office.


1      All further references are to the Welfare and Institutions Code unless otherwise
indicated.


                                               2
        The coroner ruled that J.M. died of an acute alcohol overdose. Toxicology tests
on the autopsy blood revealed “an elevated fatal ethyl alcohol level” as well as the
presence of doxylamine, a constituent of NyQuil. J.M. also had a blood alcohol level of
0.45%. In addition, J.M. also tested positive for influenza A on a viral nasal swab culture
and microscopic sections of her larynx showed moderate chronic inflammation consistent
with viral laryngitis. The coroner reported the manner of J.M.’s death as “pending.”
There are no follow-up reports explaining the manner of her death.
        The Fresno Police Department investigated J.M.’s death and submitted the case to
the district attorney’s office for review. No criminal charges were filed against mother.
        On February 22, 2013, police officers responded to a report of domestic violence
and a stabbing at mother’s home. Mother and father were intoxicated and arguing over
who was responsible for J.M.’s death. During the argument, mother stabbed father in the
stomach with a paring knife and he hit her in the mouth knocking out two of her front
teeth. Then four-year-old E.M. and two-year-old E.S.M. were in the middle of the fight
trying to break it up. Mother and father were arrested for willful infliction of corporal
injury and mother was also charged with assault with a deadly weapon. They were
transported to the hospital for treatment. The children were taken into protective custody
by the Fresno County Department of Social Services (department) and placed in foster
care.
        Father told the investigating social worker he was an alcoholic and he and mother
were drinking the day of their arrest to cope with J.M.’s death. He said he was not in the
home on the day of J.M.’s death or the three days prior. He said he and mother were not
married but had been in a relationship for eight years. He loved her and intended to
continue the relationship. He also said he had been arrested in the past for domestic
violence and had served a prison sentence for it. He was last arrested for domestic
violence in 2006 but he and mother regularly fought. The children witnessed these fights

                                             3
which involved yelling, cussing and slamming doors. Father recognized his need for
counseling and treatment.
       Mother told the social worker she did not drink alcohol regularly and did not use
drugs. She did not believe she needed substance abuse treatment or domestic violence
counseling either as a perpetrator or victim. She did, however, believe she needed grief
counseling.
       The department filed an original dependency petition alleging in part mother and
father’s domestic violence placed the children at a substantial risk of serious physical and
emotional harm (§ 300, subds. (b) & (c)). The petition also alleged mother negligently
caused J.M.’s death by giving her adult-strength NyQuil and ibuprofen; thus, placing
E.M. and E.S.M. at a substantial risk of abuse or neglect. (§ 300, subd. (f).)
       Several days after the department placed the children in foster care, the foster
mother reported that E.M. stated he wanted to kill the foster parent’s baby. He was
having nightmares from which he awoke screaming, crying and shaking. He was also
physically aggressive with E.S.M. and hit and tried to hurt her. Approximately a week
later he tried to stab the foster parent’s dog with a knife and had to be removed from that
placement.
       On February 28, 2013, at the detention hearing, the juvenile court sustained the
original dependency petition and ordered the department to provide mother and father
parenting classes, substance abuse, mental health and domestic violence evaluations,
random drug testing and weekly supervised visitation. The juvenile court also ordered
the department to provide the children mental health evaluations and refer mother, father
and the children for any recommended treatment.
       In March 2013, mother enrolled in a parenting class, signed up for random drug
testing and completed the evaluations. She disclosed during her substance abuse
evaluation that she struggled with alcohol use and had consumed alcohol to intoxication

                                             4
for 18 years. As a result, she was referred for intensive outpatient substance abuse
treatment.
       As part of her domestic violence evaluation, mother completed the domestic
violence inventory (DVI). On the control scale of the DVI, mother scored 69%, placing
her in the medium risk range. According to the DVI profile, a medium risk scorer’s
“emotions can interfere with their judgment─resulting in unpredictable behavior. When
asked about control issues, [mother] replied, ‘I have no problem controlling my anger.’”
On the violence scale of the DVI, mother scored 94%, placing her in the maximum risk
range. According to the DVI profile, such a person “should be considered dangerous.”
As a result of her scores on the DVI, it was recommended mother complete a 52-week
batterer’s treatment program.
       During her mental health evaluation, mother described herself as “severely
depressed, overwhelmed, stressed out. Grieving!” She reported being abused and
neglected as a child and being exposed to her parents’ extreme domestic violence.
However, according to the therapist, “[mother] showed little insight and poor judgment
with her own children.” The therapist recommended the department refer mother for a
psychological evaluation. The department did not follow the therapist’s
recommendation.
       By November 2013, mother successfully completed a parenting program and an
alcohol and drug recovery treatment program at Delta Care, Inc. She elected to continue
in Delta Care’s relapse prevention program twice a week. Mother registered for a 52-
week batterer’s treatment program in July 2013 and only attended two sessions.
Consequently, she was terminated from the program. In the termination report dated
August 2013, the clinical director of the program indicated mother had not made any
progress in empathy and insight. However, she attended the domestic violence
intervention education sessions at Delta Care and actively participated in the support

                                             5
meetings. Mother also participated in mental health therapy and random urinalysis
screening, testing negative for all illicit drugs and alcohol.
       Father also completed a substance abuse program and was doing very well. He
and mother were no longer in a relationship but were committed to reunifying with their
children. They regularly visited the children under the department’s supervision and the
children were happy to see them.
       Despite mother and father’s demonstrated commitment to the children and
participation in services, the department recommended the juvenile court deny mother
reunification services under section 361.5, subdivision (b)(4)2 for having caused J.M.’s
death and father under section 361.5, subdivision (b)(13) for failure to treat his substance
abuse problem. The department informed the court that the children’s foster parent was
not willing to provide them a permanent placement but their maternal great-aunt was
willing and was being evaluated.
       In November 2013, the juvenile court convened a combined hearing on
jurisdiction and disposition. A few days before the hearing, the department filed a first
amended petition striking one of the section 300, subdivision (b) allegations and
amending the subdivision (f) allegation to correct the date of J.M.’s death and delete an
incorrect date associated with the toxicology results. Mother and father submitted to the
allegations in the first amended petition and the juvenile court found E.M. and E.S.M. to
be minors described in section 300, subdivisions (b), (c) and (f). The court proceeded
with the dispositional phase of the hearing and heard testimony.


2       Section 361.5, subdivision (b)(4) provides as relevant here: “Reunification
services need not be provided to a parent … described in this subdivision when the court
finds, by clear and convincing evidence, .… [¶ ] … [¶ ] (4) [t]hat the parent … of the
child has caused the death of another child through abuse or neglect.”



                                               6
       Social worker Rene Mendoza testified that mother took a strong interest in the
children’s needs and that, though Mendoza had not observed mother with the children,
mother had reportedly made “a dramatic improvement” in setting boundaries for the
children during visitation. Mendoza testified that the children witnessed ongoing
domestic violence and that E.M. was the one who found J.M. unresponsive. E.M. still
had nightmares, threw severe tantrums and displayed aggressive behavior toward E.S.M.
but not as often.
       Mendoza further testified that the children were working with a therapist to
transition them into the home of their maternal great-aunt with whom E.M. reportedly
had a “very strong bond.”
       At the conclusion of Mendoza’s testimony the juvenile court indicated the
evidence did not support a denial of reunification services to father and asked county
counsel to consult with the department. Mother’s attorney asked the court to accept a
written declaration by mother’s 18-year-old daughter D.E. as an offer of proof. In her
declaration, D.E. praised her mother’s parenting of her and her siblings and attributed her
own scholastic success to mother. She graduated from high school with a grade point
average of 3.6, was the valedictorian of her class and was a first-year student at the
University of California at Berkeley. The court accepted the offer of proof and continued
the hearing until the following morning.
       The following morning, county counsel withdrew its recommendation to deny
father reunification services and testimony resumed. Mother’s attorney called Anna
Dominguez, the visitation facilitator, who supervised visits between mother and the
children since April 2013. The children were always happy to see mother and were very
affectionate toward her. Dominguez never witnessed mother act aggressively toward the
children or place them at risk. Mother came very well prepared for the visits and
interacted appropriately with the children. When the visits ended, she hugged and kissed

                                              7
the children and told them she loved them. Sometimes E.M. cried at the end of the visit
and E.S.M. clung to mother not wanting her to leave. However, the children had a good
relationship with their care provider and if the children were not upset, mother simply left
the visitation room. Dominguez believed mother was ready to advance to unsupervised
visits, but was not qualified to offer an opinion about parental risk or the parent/child
bond.
        At the conclusion of the hearing, the juvenile court denied mother reunification
services under section 361.5, subdivision (b)(4), having found she caused J.M.’s death
and it was not in the children’s best interest to reunify. The court ordered reunification
services for father and ordered mother’s visitation order to remain unchanged. This
appeal ensued.
                                       DISCUSSION
        Mother contends the juvenile court erred in denying her reunification services not
because it applied section 361.5, subdivision (b)(4) to her case, but because it did not find
reunification would serve the best interest of the children under section 361.5,
subdivision (c).
        We review the denial of reunification services under section 361.5, subdivision (c)
for an abuse of discretion. “As a reviewing court, we will reverse a juvenile court’s order
denying services only if that discretion has been clearly abused.” (In re Angelique C.
(2003) 113 Cal.App.4th 509, 523-524.) We find no abuse of discretion.
        As a general rule, the juvenile court must provide reunification services when it
removes a child from parental custody. The court “need not,” however, provide
reunification services when it finds by clear and convincing evidence the existence of one
or more specified circumstances enumerated in section 361.5, subdivision (b)(1)-(16).
One of the circumstances that will permit denial of reunification services is found in



                                              8
section 361.5, subdivision (b)(4): “the parent … has caused the death of another child
through abuse or neglect.”
       When, as here, the juvenile court finds that a parent is described under section
361.5, subdivision (b)(4), it is prohibited from ordering reunification services for that
parent unless it finds by clear and convincing evidence that reunification is in the best
interest of the dependent child. (§ 361.5, subd. (c).)
       In In re Ethan N. (2004) 122 Cal.App.4th 55 (Ethan N.) this court examined the
concept of best interest in the context of the death of a child. (Ethan N., supra, at pp. 66-
67.) The juvenile court in that case granted reunification services to a mother whose
negligence contributed to the murder of her one-month-old son by her husband. (Id. at
pp. 59-60.) We concluded the juvenile court abused its discretion in ordering services
and reversed. In so doing, we acknowledged the Legislature permitted the possibility that
a parent guilty of causing the death of a child through abuse or neglect could be accorded
reunification services. However, we concluded such a case is rare. (Id. at pp. 68-69.)
We stated:

       “The cases in which a parent who has been responsible for the death of a
       child through abuse or neglect will be able to show that reunification will
       serve the best interest of another child or other children will be rare. ‘The
       enormity of a death arising out of … child abuse swallows up almost all, if
       not all, competing concerns.…’ [Citation.]” (Ethan N., supra, 122
       Cal.App.4th at pp. 68-69.)
       Nevertheless, we formulated and applied four factors we concluded juvenile courts
should consider in determining whether reunification would serve a child’s best interest.
These are: (1) the “parent’s current efforts and fitness as well as the parent’s history,”
(2) the gravity of the problem that led to the dependency, (3) the strength of the relative
bonds between the child and the parent and the child and his or her caretakers, and (4) the
child’s need for stability and continuity. (Ethan N., supra, 122 Cal.App.4th at pp. 66-67.)



                                              9
       Mother argues the Ethan N. factors applied to her case compel a finding in her
favor. Specifically, mother points out that she has no prior child welfare history and
successfully raised her daughters, D.E. and R.E. Further, she claims J.M.’s death is
distinguishable from other cases involving the death of a child in that J.M. died as the
result of an isolated tragic accident rather than from ongoing physical abuse.3 Finally,
mother asserts she regularly participated in her pre-dispositional services, the children are
closely bonded to her, and the children would have the stability and continuity they need
if placed with her under family maintenance services.
       Indeed, as mother points out, there is evidence which favors reunification.
However, best interest in cases involving the death of a child is not reflected by a
preponderance of favorable evidence. Rather, the death will always be the focal point
and the question will always be whether other considerations are so compelling as to
virtually necessitate reunification despite the death.
       Mother contends her case is unique because J.M. died as the result of “a one-time
tragic mistake in administering an over-the-counter medication.” She further contends In
re Ethan C. (2012) 54 Cal.4th 610 (Ethan C.) provides precedent for ordering
reunification services in such a case.



3      Mother cites Ethan N., supra, 122 Cal.App.4th 55, In re Alexis M. (1997) 54
Cal.App.4th 848 (Alexis M.) and Patricia O. v. Superior Court (1999) 69 Cal.App.4th
933 (Patricia O.). In Ethan N., the mother’s neglect allowed her husband to murder her
39-day-old son through repeated and extensive physical abuse culminating in cerebral
hypoxia caused by a golf ball-sized wad of paper lodged deep in the baby’s esophagus.
(Ethan N., supra, at p. 61.) In Alexis M., a father was convicted of felony child abuse in
the death of his four-month-old son resulting from “very serious acts of abuse … too
shocking to ignore .…” (Alexis M., supra, at pp. 850-851.) In Patricia O., the mother’s
former boyfriend subjected her baby to multiple acute and chronic injuries. The baby
died of “multiple injuries to the abdomen area as the result of blunt force trauma.”
(Patricia O., supra, at pp. 935-936.)


                                              10
       In Ethan C., the father was driving his infant daughter to the hospital for treatment
of her injured arm when, through no fault of the father, another vehicle collided with his
car. The daughter was not secured in a child safety seat but was sitting on an adult
relative’s lap. The child died as the result of blunt force injuries. Child protective
services took father’s two sons, a three year old and a seven month old, into protective
custody and the juvenile court assumed jurisdiction over them under section 300,
subdivision (f) (death of a child by parental abuse or neglect) and ordered family
reunification services for the father. (Ethan C., supra, 54 Cal.4th at pp. 618-621.)
       The father in Ethan C. appealed arguing that dependency jurisdiction based on
section 300, subdivision (f) requires evidence of criminal negligence, not an ordinary
breach of care such as “his single failure” to secure his daughter properly in his vehicle.
The court of appeal and the California Supreme Court held that ordinary negligence is
sufficient to sustain a section 300, subdivision (f) allegation and affirmed. (Ethan C.,
supra, 54 Cal.4th at pp. 622-623, 642.)
       We find Ethan C. of no precedential value in mother’s case. Ethan C. examined
the requisite parental culpability to support a jurisdictional finding under section 300,
subdivision (f). Ethan C. did not examine the juvenile court’s decision to order the father
reunification services and its underlying determination that it was in his sons’ best
interest to do so despite the death of their sister. Therefore, Ethan C. is not, as mother
contends, “instructive” simply because the juvenile court in that case ordered
reunification services.
       Further, we reject mother’s contention J.M.’s death was caused by a “one-time
mistake.” She gave J.M. an unspecified dosage of adult-strength NyQuil purportedly
every six hours over approximately two and a half days. Unfortunately, there is no
evidence on the record as to the manner of J.M.’s death or a description of the physical
effects the NyQuil had on her over that period of time. However, one can reasonably

                                             11
infer that she manifested outward signs that should have alarmed mother and caused her
to discontinue the NyQuil given the fact that J.M.’s blood alcohol was rising to a toxic
level. We believe the juvenile court aptly described it as “administering poison” “over a
period of time.” As such, it was not as mother contends a “one-time” discrete accident.
       Finally, we believe the impact of mother’s domestic violence and its attendant
emotional abuse on the children factors significantly in this case. E.M., in particular, was
suffering its effects. He awoke in the night screaming, crying and shaking. More
disturbingly, he had already internalized the violence he witnessed. He wanted to kill the
foster mother’s baby and tried to stab the foster parent’s dog. We do not believe it was
coincidental that E.M. chose to use a knife. We also note that of all the services offered
to mother, the batterer’s treatment program was the one she needed most and the one in
which she chose not to participate.
       We conclude the circumstances of J.M.’s death, mother’s untreated domestic
violence and the emotional abuse already inflicted on the children support the juvenile
court’s finding reunification services for mother would not serve the children’s best
interests. Thus, we further conclude the juvenile court did not abuse its discretion in
denying mother reunification services under section 361.5, subdivision (c).
                                      DISPOSITION
       The judgment is affirmed.




                                             12
