Filed 5/10/13 In re Maria M. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

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

FRESNO COUNTY DEPARTMENT OF                                                                F065810
SOCIAL SERVICES,
                                                                          (Super. Ct. Nos. 11CEJ300249-1,
         Plaintiff and Respondent,                                                11CEJ300249-2)

                   v.
                                                                                         OPINION
ELIZABETH C.,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from orders of the Superior Court of Fresno County. Mary Dolas,
Commissioner.
         Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel,
for Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Wiseman, Acting P.J., Levy, J. and Cornell, J.
       Elizabeth C. appeals from the dispositional order removing her 17-year-old
daughter Maria and three-year-old daughter Jacquelyn from her custody under Welfare
and Institutions Code section 361.1 Elizabeth contends the order must be reversed
because there was no evidence the children were at risk of harm in her care and there
were less restrictive alternatives to removal. We affirm the juvenile court’s order.
                    PROCEDURAL AND FACTUAL SUMMARY
       Elizabeth and Dustin are an intact, married couple. Elizabeth is the mother of
three daughters, Marissa, an adult, and minors, Maria and Jacquelyn, the subjects of this
appeal. Dustin is Jacquelyn’s father.2 He also has a teenage son, Jesse.
       In November 2011, Fresno police officers were dispatched to Elizabeth and
Dustin’s apartment to investigate a disturbance. The reporting party (RP), a neighbor,
reported hearing a male yell that he was going to shove food down a juvenile’s throat.
The RP also stated it sounded like the juvenile was being hit or slapped. When the
officers arrived, the RP confirmed that the disturbance was coming from Elizabeth’s
home. She said the father was very abusive to the son and that the son was very quiet.
She said even the children in the complex were aware of the abuse. She was concerned
the juvenile was in danger of being seriously hurt by his father.
       Dustin answered the door of his apartment, intoxicated and holding a beer. The
officers ran a criminal check on Dustin and discovered he had two warrants, one for a
willful cruelty to a child stemming from a report of child abuse in March 2011 and the
other for driving under the influence.
       Then 17-year-old Jesse emerged from a back bedroom, wearing a T-shirt and very
short shorts. He appeared extremely emaciated and thin, was dirty and had body odor.
He told Officer Christopher Long that he had just taken a shower and took Long to a back

1     All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2      Dustin did not appeal from the removal order as to Jacquelyn.


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bedroom and into the bathroom where he said he was “on the wall.” Jesse explained that
being “on the wall’ was being grounded. He said he was grounded “all the time.” Jesse
pointed to a chain at the top corner of the door and stated that Dustin and Elizabeth
locked him in the bathroom. Long told Jesse to remain in the bedroom while he spoke to
Elizabeth.
       Elizabeth admitted confining Jesse in the bathroom but denied locking him in
there. She said they put Jesse in the bathroom for everyone’s safety and the lock on the
door was to keep Jacquelyn from playing in the toilet water. Long noticed that the other
bathroom in the apartment did not have a lock and that the only other room with a lock on
the door was the room Jesse was sometimes allowed to sleep in.
       Long returned to find Jesse in the bathroom staring at the walls. Long was
concerned that Jesse either had a mental disorder or was mistreated to the point of having
suffered psychological damage so he called for emergency services. Long asked
Elizabeth if Jesse was medically evaluated. She said they took him to school counselors
but Jesse refused to see a doctor or attend counseling sessions and she did not believe she
could force him.
       Dustin said that they had problems with Jesse lying and stealing and being
disrespectful for four to five years. Dustin stated, “I don’t care what he is doing as long
as he keeps out of my way.” Dustin admitted locking Jesse in the bathroom and bedroom
at times. He said that evening Jesse did not want to eat. He slapped Jesse twice across
the face when he discovered that Jesse tied a piece of string around one of his toes. He
said Jesse occasionally tied string around his legs, abdomen and appendages to conceal
them from Dustin. Dustin could not explain why Jesse did this.
       Dustin also said that Jesse was not allowed to wear shoes, pants, socks or even a
shirt while he was in the apartment to make sure he did not steal anything. Jesse could
earn clothing back by good behavior. He said they provided Jesse pants, a shirt and shoes
when he left the apartment. Dustin said Jesse was not attending school and they intended


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to home school him. Long later discovered that Jesse’s withdrawal from public school
coincided with a complaint Jesse made that spawned a child protective services
investigation.
       Long also talked to Maria about the disturbance that occurred during dinner. She
said she was sitting in the living room on the couch eating dinner and watching
television. She said she did not hear any disturbance during dinner. Long estimated that
the distance between the dining room table and the living room couch was approximately
15 feet. He asked Maria how it was possible that she did not hear anything given her
close proximity. She responded that she was not paying attention and did not hear
anything. Long concluded that Maria did not want to be honest and participate in the
investigation.
       Long reported that Dustin’s dislike for Jesse was very clear. Dustin stated he did
not care much for Jesse and wanted him to stay out of his way and not interfere with his
time with “his girls.” Long noted that Maria and Jacquelyn were clean, well dressed and
well nourished. Long arrested Dustin on his outstanding warrants and he and Elizabeth
were charged with willful cruelty to a child, false imprisonment and failure to provide.
Maria and Jacquelyn were taken into protective custody by the Fresno County
Department of Social Services (department) and placed in foster care.
       Jesse was transported to the hospital because his heart rate dropped to a dangerous
level while being evaluated by the paramedics. He was admitted and diagnosed with
malnutrition. Upon admission, he weighed 115 pounds, placing him at the 50th
percentile for height and the fifth percentile for weight. After four days in the hospital,
Jesse weighed 128 pounds. His treating physician stated that his condition was severe
and potentially life-threatening.
       While hospitalized, Jesse provided more detail to the investigating officer. He
said that his biological mother was schizophrenic and that she choked him, stabbed him
in the head with car keys and beat him with some type of tool or wrench when he was six


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years old. When he was 12 years old, he went to live with Dustin. He said he did not
have a bedroom and slept in the bathroom or on the floor in the playroom that belonged
to Jacquelyn. He said he was not allowed to sleep with a blanket and had “begged” for
one. He said he did not report his mistreatment because his parents told him if he did
anything aggressive he would be put in jail. He said he collected little things because he
was creative and got bored. He went to bed and to the bathroom when given permission.
He was required to leave the bathroom door open while voiding.
       Jesse said he did not generally eat with the family and that Elizabeth prepared the
meals. When he was allowed to eat at the same time as the family, he was not allowed to
eat in their presence but was required to eat standing in the kitchen or in another room.
He said on the night the police were called, he was fed a half a plate of vegetables around
dinner time and told to go to his room while the rest of the food was prepared. At one
point, Elizabeth checked on him and saw that he had tied a string around his toes. Dustin
then came in and slapped him across the face approximately 10 to 20 times. He remained
there until the police came. Elizabeth told him to tell the police he had just gotten out of
the shower and to put a shirt on. He said approximately two months earlier, Elizabeth hit
him on the back with a broken broom handle.
       The RP told the investigating officer she was concerned that Jesse would be
returned to his parents. She said she feared for some time that he would be killed. She
said she heard Elizabeth on numerous occasions yelling at Jesse and saw Jesse digging in
garbage cans, looking for food. She said on one occasion a neighbor offered Jesse food.
When Elizabeth found out, she yelled at Jesse, stating “You don’t f****** deserve to
eat.” She also heard Dustin yell on occasion, “I’ll shove it down your f****** throat.”
       The department filed a dependency petition on behalf of Maria and Jacquelyn
alleging there was a substantial risk that they would suffer abuse or neglect in Dustin and
Elizabeth’s care because Jesse was malnourished with a dangerously low heart rate while
in their care. The petition also alleged that Dustin abused alcohol and that Maria’s father


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was incarcerated and unable to provide for her. (§ 300, subds. (b) & (g).) The petition
was subsequently amended to include findings that Jesse gained at least 13 pounds in five
days and was diagnosed with failure to thrive.
        The department filed a separate dependency petition on behalf of Jesse because
Elizabeth was not his biological mother.
        The juvenile court ordered Maria and Jacquelyn detained and ordered the
department to offer Dustin and Elizabeth parenting classes and mental health evaluations.
The court additionally ordered Dustin to complete a substance abuse evaluation and
submit to random drug testing. The court set the jurisdictional hearing for February
2012.
        The juvenile court also ordered Jesse detained at a separate hearing but did not
offer Dustin services. The juvenile court subsequently adjudged Jesse a dependent of the
court and Dustin waived reunification services.
        By February 2012, Elizabeth and Dustin were participating in parenting classes
and Dustin completed a substance abuse assessment, resulting in referrals for intensive
outpatient treatment and random drug testing. They also completed mental health
assessments. The therapist that evaluated Elizabeth described her affect as “flat” and
stated that Elizabeth showed little compassion for Jesse and denied any responsibility for
his condition. The therapist questioned Elizabeth’s truthfulness and recommended that
she undergo a psychological evaluation. Similarly, the therapist who assessed Dustin
recommended that he undergo a psychological evaluation.
        In February 2012, the juvenile court convened the jurisdictional hearing and
adjudged Maria and Jacquelyn dependents of the court after Elizabeth and Dustin waived
their right to a hearing on the allegations. The court set the matter for a dispositional
hearing in March 2012 and ordered weekly unsupervised visitation.




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       In March 2012, Elizabeth’s attorney requested disclosure of mental health
information from Jesse’s case. Jesse’s attorney invoked the psychotherapist-patient
privilege on his behalf and the juvenile court denied the request.
       Also in March 2012, Elizabeth and Dustin completed a Nurturing Parenting
Program. The case manager reported that Elizabeth participated in group discussions but
never mentioned Jesse and Dustin refused to discuss Jesse. The case manager was
concerned about Elizabeth and Dustin’s ability to provide a safe home for their children
despite their completion of the program.
       In its dispositional report, the department recommended the juvenile court order
Maria and Jacquelyn removed and provide Elizabeth and Dustin reunification services.
The matter was set for a contested hearing on the sufficiency of the evidence supporting
removal. Specifically at issue was whether there was sufficient evidence that Maria and
Jacquelyn were at a substantial risk of harm if returned to Elizabeth and Dustin’s custody.
       The dispositional hearing scheduled in March 2012 was continued and ultimately
conducted in July and August of 2012. In the meantime, the juvenile court granted the
department discretion to proceed to liberal visitation.
       In July 2012, the juvenile court convened the contested dispositional hearing and
heard testimony from Dustin, Elizabeth, Maria and social worker Kathleen Miller.
Dustin and Elizabeth denied depriving Jesse of food. Dustin did not notice that Jesse had
any medical problems. Asked how he explained Jesse’s low weight, he testified it could
be his metabolism because he was always active. Elizabeth did not notice that Jesse was
thin and did not believe the medical reports that he was so thin he needed medical
treatment. She said that Jesse skipped meals by his own choice. Dustin denied locking
Jesse in the bathroom for timeout and he and Elizabeth denied refusing to discuss Jesse in
the parenting class.
       Maria testified that Dustin yelled and she was fearful for Jesse’s safety but did not
think Dustin would hurt Jesse. She said she noticed that Jesse was thin but did not


                                              7
wonder why. She said he was a picky eater and was offered the same food as everyone
else. She denied that Dustin deprived Jesse of food. She also denied seeing Elizabeth hit
Jesse. She saw marks and bruises on Jesse but said he liked to hurt himself.
       Kathleen Miller testified that overnight visitation had begun and the visits were
positive. Dustin and Elizabeth were affectionate with Maria and Jacquelyn and there was
a parent/child bond. She also testified that Dustin and Elizabeth completed a parenting
class and that Dustin completed substance abuse treatment. However, Ms. Miller
explained that the department was concerned that Dustin and Elizabeth’s refusal to
discuss what happened to Jesse could portend danger to Maria and Jacquelyn if they were
returned home. In addition, neither parent was willing to undergo a psychological
evaluation. Consequently, the department wanted to put a safety plan in place before
returning the girls.
       Ms. Miller further testified that Dustin suggested the department place the girls
back in the home and conduct daily checks. However, the department did not believe
that was an appropriate alternative to removal. Instead, the department believed the only
way to evaluate the risk of returning the girls to their home was for Dustin and Elizabeth
to participate in mental health services and develop a safety plan. She testified the risk of
harm was returning the children without the parents having dealt with the issues that led
to Jesse’s abuse.
       During argument, Dustin and Elizabeth’s attorneys asked the juvenile court to
return Maria and Jacquelyn to their custody under family maintenance. Minors’ counsel
joined with county counsel in arguing that the juvenile court order Maria and Jacquelyn
removed and order Dustin and Elizabeth to participate in a psychological evaluation.
       At the conclusion of the hearing, the juvenile court ordered Maria and Jacquelyn
removed and ordered reunification services for Elizabeth and Dustin to include mental
health and psychological evaluations. In doing so, the court stated in order to evaluate
the risk, if any, to Maria and Jacquelyn, one had to “[look] into the parents’ psyche.” The


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juvenile court further stated that Dustin and Elizabeth had not presented “even a base
level” of understanding as to what happened with Jesse.
       The juvenile court added another night to the overnight visits and ordered the
department to evaluate the adult sibling, Marissa, for placement.
       This appeal ensued.
                                      DISCUSSION
       Elizabeth contends there was insufficient evidence to support the juvenile court’s
removal order. We disagree.
I.     Applicable law.
       The standard for removal of a child from parental custody is found in section 361,
subdivision (c) which provides, in relevant part,

       “A dependent child may not be taken from the physical custody of [a
       parent] with whom the child resides at the time the petition was initiated,
       unless the juvenile court finds clear and convincing evidence ...; ¶ [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 or guardian’s physical custody.” (§ 361, subd. (c).)
       “The parent need not be dangerous and the child need not have been actually
harmed for removal to be appropriate. The focus of the statute is on averting harm to the
child.” (In re Cole C. (2009) 174 Cal.App.4th 900, 917.) Although the juvenile court’s
findings must be based on clear and convincing evidence, we review an order removing a
child from parental custody for substantial evidence. (In re J.K. (2009) 174 Cal.App.4th
1426, 1433.)
II.    The record supports the juvenile court’s removal order.
       Elizabeth challenges the removal order on three grounds: (1) the burden of proof
was erroneously shifted to her; (2) there was insufficient evidence that returning Maria
and Jacquelyn to her custody would expose them to substantial danger; and (3) the



                                              9
department failed to show there were no reasonable means to protect Maria and
Jacquelyn other than removal.
       A. Burden of Proof
       Elizabeth’s contention with respect to the burden of proof is as follows: County
counsel and minors’ counsel argued she did not benefit from services. Such argument
demonstrates she was expected to prove she benefitted from services and Maria and
Jacquelyn could be returned to her without risk of substantial danger. Therefore, instead
of requiring the department to prove that returning the children to her custody would
expose them to substantial danger, she contends, the burden was erroneously shifted to
her to prove that substantial danger did not exist. The record, however, does not support
Elizabeth’s contention. Counsel’s statements regarding benefit from services were made
in the context of Elizabeth and Dustin’s lack of understanding of the harm they caused
Jesse. There is simply no evidence that anyone but the department bore the burden of
proving substantial danger.
       B. Substantial Danger
       Elizabeth contends the department failed to show how her handling of Jesse (“an
extremely troubled teenager”) evidenced a substantial danger to Maria and Jacquelyn.
We conclude the record amply portrays the risk of danger. Jesse was severely and
systematically abused while in Elizabeth’s care yet Elizabeth refused to admit that
obvious fact. She did not accept the medical evidence that he was malnourished and
failing to thrive. In addition, Elizabeth was not concerned about Jesse’s condition. She
did not inquire about him and refused to discuss him. One has to presume that cruelty of
that magnitude without explanation makes the person inflicting it inherently dangerous.
Thus, it is reasonable to conclude that Maria and Jacquelyn could be at substantial risk in
Elizabeth’s care even though she had no history of mistreating them and apparently took
good care of them.




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       C. Alternatives to Removal
       Elizabeth contends family maintenance was a reasonable alternative to removal
because she could have addressed the department’s concerns (i.e. mental health
counseling and safety network) while under such an arrangement. She cites two cases, In
re Henry V. (2004) 119 Cal.App.4th 522 (Henry V.) and In re Jeannette S. (1979) 94
Cal.App.3d 52 (Jeannette S.), that resulted in reversal of a removal order and contends
her case compels the same result. We disagree.
       In Henry V., the court reversed the removal order of a child who sustained burn
marks of undetermined origin and whose mother had bonding deficiencies. (Henry V.,
supra, 119 Cal.App.4th at pp. 527, 531.) The court reasoned the physical abuse was a
single occurrence and the mother was fully cooperative in taking advantage of the
services offered to her. In addition, removal had been premised on the need to complete
a bonding study but there was no evidence the study could not occur with the child living
at home. Rather, the social worker acknowledged that in-home bonding services,
unannounced visits and public health nursing services could address the bonding issue
and mitigate the risk of further physical abuse. (Id. at p. 529.)
       In Jeannette S., the mother and father were divorced. Social workers had visited
the mother’s home and “found it dirty and cluttered with debris. There were extensive
dog feces on the kitchen floor and cat feces in the bathroom. The house smelled of urine
and there was spoiled food on the stove. [The minor] had been forced to sleep on the
couch in the living room because her bedroom was such a mess.” (Jeannette S., supra,
94 Cal.App.3d at pp. 55-56.) This court, however, found the juvenile court’s
dispositional order removing custody from the parents was inappropriate because the
juvenile court had two reasonable alternatives to removal. It could have imposed
“stringent conditions of supervision by the welfare department with the warning that if
[the mother] again let her house get filthy or failed to keep [the minor] in clean clothes




                                             11
and to properly care for her that appellant would lose custody of the child.”
Alternatively, the court could have placed the minor with her father. (Id. at p. 60.)
       We find Henry V. and Jeannette S. distinguishable on several key points. Unlike
Henry V., Jesse did not suffer a single incident of child abuse. Instead, his abuse was
ongoing and methodical. Further, unlike the mother in Henry V., Elizabeth did not take
full advantage of the services offered to her. Rather, she refused a psychological
evaluation and did not discuss her abusive behavior in parenting sessions. Unlike
Jeannette S., Maria and Jacquelyn could not be placed with their fathers. Maria’s father
was incarcerated and Dustin was considered as big a threat to Jacquelyn as Elizabeth.
Finally, unlike Henry V., the department in this case did not believe that daily checks on
the family were sufficient to protect Maria and Jacquelyn from harm. Further, the
evidence does not support imposition of stringent conditions such as those contemplated
in Jeannette S. Stringent conditions may be effective where the evidence of abuse or
neglect is readily apparent such as a dirty and hazardous home. However, Jesse’s abuse
was only apparent because it had reached the point where he needed medical attention.
Such subtle and insidious abuse is not readily apparent or necessarily detectable by
stringent conditions of supervision.
       We concur with the juvenile court that Elizabeth’s unexplained physical abuse of
Jesse posed a substantial danger to Maria and Jacquelyn if they were returned to her
custody. We further concur that there were no reasonable alternatives to the children’s
removal until Elizabeth was willing to examine the cause of the abuse through mental
health services.
       Thus, we conclude substantial evidence supports the juvenile court’s dispositional
order removing Maria and Jacquelyn from Elizabeth’s custody and affirm.
                                       DISPOSITION
       The dispositional orders entered on August 6, 2012, are affirmed.




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