HEIDI v. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES

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Court of Appeal, Fifth District, California.

HEIDI S., Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest.

F061637

Decided: March 25, 2011

Judith A. Sanders, for Petitioner.   No appearance for Respondent.   Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Real Party in Interest.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

O P I N I O N

Petitioner seeks an extraordinary writ (Cal. Rules of Court, rule 8.452) from the juvenile court's jurisdictional findings and dispositional orders, including its order setting a Welfare and Institutions Code section 366.26 1 hearing as to her daughter, V.M.2 We will deny the petition.

STATEMENT OF THE CASE AND FACTS

In July 2010, then two-year-old V.M. was taken into protective custody after the police arrested petitioner and charged her with child cruelty.   This incident was not the first time petitioner was involved in the physical abuse of her children.   In September 2004, petitioner's then three-year-old son, Isaiah, and four-month-old son, Sean, were taken into protective custody after Sean was hospitalized with shaken impact syndrome.   After exercising its dependency jurisdiction, the juvenile court denied petitioner and Sergio, Isaiah and Sean's father, reunification services and ultimately selected adoption as their permanent plan.   Because the facts and circumstances of their case factored into the juvenile court's rulings in V.M.'s case, we incorporate them into our summary of the facts.

Isaiah and Sean

In September 2004, Sean was evaluated in the emergency room for apnea and decreased level of consciousness.   He was diagnosed with bilateral chronic and subacute subdural hematomas, which required neurosurgery.   The doctor expected Sean to have permanent brain damage.

Sergio told the police he was at home with the children.   Sean was asleep on the couch when he fell to the floor and lost consciousness.   After attempting unsuccessfully to wake Sean, Sergio telephoned petitioner who had gone to the store for baby formula.   She returned home and they called the paramedics.   Sean's doctor stated that falling off the coach could not have caused Sean's injuries.   Isaiah repeatedly told the social worker during an interview that “daddy hit Sean with his hand.”

Isaiah was also medically evaluated and found to be healthy.   However, he had a history of a fractured collarbone from falling off of a bed and a fractured right middle finger from getting his finger smashed in a door at the day care.   He also had a scar on his thigh caused by being burned with an iron.

Sergio was charged with Penal Code section 273d, felony corporal injury on a child, and the Department of Children and Family Services (department) 3 filed a dependency petition on the children's behalf pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (e) (severe physical abuse.)   The petition alleged counts as to petitioner and Sergio under each subdivision.

The juvenile court detained Sean and Isaiah pursuant to the petition and ordered the department to refer petitioner and Sergio for services.   At the jurisdictional hearing, the court found the allegations true as amended and adjudged the children dependents under section 300, subdivisions (a), (b) and (e).   With respect to petitioner, it found she failed to protect Sean and Isaiah from injury pursuant to section 300, subdivision (b).  It also found, pursuant to section 300, subdivision (e), that she reasonably should have known that Sergio was physically abusing Sean.

In its report for the dispositional hearing, the department reported that petitioner completed a parenting class and mental health and substance abuse assessments.   She was found to be in need of individual therapy, but not substance abuse treatment.   She enrolled in the drug testing program in early September 2004 and tested negative when she participated.   However, she did not drug test in October and missed one drug test in November and two drug tests in December.   The department reported that petitioner was very “persistent in obtaining services, and completing them.”   She had an apartment, was employed, and visited her children on a regular basis.   She and Sergio had maintained their relationship.

As to the children, the department reported that Isaiah and Sean appeared to be in good general health.   Isaiah was developing well physically, but had a language delay.   Sean appeared to have some gross motor skill delay and problems with problem solving.   The children were living with their maternal aunt who was willing to adopt them.

In March 2005, at the dispositional hearing, the juvenile court denied petitioner and Sergio reunification services and set a section 366.26 hearing.   In July 2005, at the section 366.26 hearing, the court found it would be detrimental to terminate parental rights and ordered Isaiah and Sean into a plan of legal guardianship with their maternal aunt.

In February 2008, petitioner gave birth to V.M. The following September, at a contested section 366.26 hearing, the juvenile court found adoption was the appropriate permanent plan for Isaiah and Sean. In October 2008, the court terminated petitioner and Sergio's parental rights as to them.   Petitioner did not appeal from the juvenile court's dispositional orders or orders terminating her parental rights.   Sergio was convicted of the physical abuse and sentenced to two years in prison.

V.M.

In July 2010, police officers were dispatched to petitioner's residence to investigate a report of child abuse in progress.   Petitioner's sister, Kimberly, gave Officer Wilkins the following statement:  She said that petitioner was addicted to methamphetamine.   Two months prior, petitioner was evicted from her house and moved in with Kimberly and their mother, Anissa.   Since petitioner became addicted to methamphetamine, she had been abusing V.M. She said petitioner slept all day that day because she was coming down “from her high.”   While petitioner was sleeping, V.M. began making a mess in the house.   Kimberly and her boyfriend, Aaron, tried but were unable to clean up the mess.   Sometime after 6:00 p.m., petitioner woke up, saw the mess, and started yelling at V.M. Petitioner grabbed V.M. by the hair, yanked and pulled her around the apartment and said to her, “Clean this fucking shit up!   You see this?   Clean this shit up!”   Kimberly simulated petitioner's conduct by grabbing Aaron's hair and jerking his head back and forth.   She said V.M.'s head was jerking back and forth and side to side in a fast, violent fashion.   She said as soon as V.M. would start walking in one direction, petitioner would jerk her head to the other side as hard as she could and make her walk in another direction.   This went on for about a minute.   V.M. cried the entire time.   Petitioner then placed her hand on V.M.'s face and pushed her into the ground causing V.M. to land on her back.   Petitioner walked over to V.M. and pushed her with her foot across the room.   Kimberly said petitioner placed her foot against V.M.'s mid-section and pushed V.M. so hard that V.M. rolled completely around two or three times.   Kimberly said V.M. picked up a few things and put them away.   Kimberly took V.M. to the table and made her some spaghetti.   Petitioner became angry again and grabbed V.M. by the hair telling her to “clean (her) shit up.”   Petitioner began jerking V.M.'s head around again, very violently.   Anissa picked V.M. up with her right arm and tried to push petitioner away.   Anissa was unable to get petitioner to let go so Kimberly began pulling on petitioner, causing a tug-of-war with V.M.'s hair as the rope.   Finally, Aaron grabbed petitioner's hand, releasing V.M.'s hair, and separated them.

Kimberly told Wilkins petitioner had been abusing V.M. this way for two months.   She said petitioner pulled V.M.'s hair, slapped her face and head, pushed her down or pushed her across the floor with her foot.   She said petitioner became angry for no reason.   She said she did not call the police because she did not have a phone.   She said she knew it was wrong, but she did not know what to do.

Aaron told Wilkins that he was in the kitchen when he heard the commotion in the living room.   Eventually, V.M. sat down at the table and he gave her some food.   He said petitioner entered the kitchen and began screaming at V.M. to clean up.   Petitioner grabbed V.M. by the hair and began yanking her head violently back and forth.   Aaron described how Anissa and Kimberly tried to intervene and how he ran over and was able to pry petitioner's hand off of V.M.'s hair.

Petitioner's sister, Kristi, told Wilkins that she was not home at the time of the incident, but that petitioner abused V.M. daily by slapping her and pulling her hair.   She said a worse incident occurred a week prior when she, petitioner, and V.M. were walking home from the store.   V.M. began crying and petitioner got mad.   Petitioner picked V.M. up by the ponytail and lifted her completely off of the ground so that V.M.'s feet were dangling in the air.   Petitioner then forcefully kneed V.M. in the stomach twice, dropped her back onto the ground and told V.M. to “fucking shut up” and “grow up.”   Kristi said she also witnessed petitioner spank V.M. on her bare buttocks with her hand as hard as she could, leaving welts and red marks.

Anissa told Officer Leibee that she and petitioner got into an argument so Anissa left to calm down.   When she returned, the family was eating dinner.   V.M. was walking around and petitioner wanted her to walk in a different direction so she put her hand on top of V.M.'s head to redirect her.   She said petitioner's hand got caught in V.M.'s hair.   Anissa got upset and began pulling petitioner's hair.   Anissa also grabbed V.M. around the waist and tried to pull her from petitioner.   She said her daughter and her daughter's boyfriend had to pull them apart.   She said she did not know what happened before that because she was not there.

Petitioner told Leibee that Kimberly and Aaron were making dinner and she told them the pasta was not cooked well enough.   She and Kimberly began to argue and petitioner put the pasta back into the pot.   Kimberly threw pasta at petitioner, but missed.   Petitioner walked away and used her hand to cup the back of V.M.'s neck and direct her away from Kimberly.   She said it was possible her hand got caught in V.M.'s hair, but she did not pull her hair.   She said she went outside and brought Anissa back in with her.   Anissa was upset with petitioner for what she said to Kimberly so petitioner and Anissa began to argue.   She said Anissa then pulled her hair and would not let go.   She said her hand was tangled in V.M.'s hair.   She said she would never hit or fight with Anissa and denied that Kimberly and Aaron had to pry them apart.   She also denied screaming at V.M. or using her foot to flip her over.   She denied picking V.M. up by the ponytail and kneeing her in the stomach.   She said she could not imagine going to the store with her sister because they do not get along.   She said she used methamphetamine a week prior, but not at that location.

Leibee checked V.M. for visible injuries, but did not find any.   Leibee noticed that when Anissa put V.M. down and told her to go to petitioner that V.M. cried and wanted Anissa to pick her up.

Leibee arrested petitioner for felony cruelty to a child (Pen.Code, § 273a(a)) and the department was contacted to take V.M. into protective custody.   While standing with Anissa, Wilkins asked her why she never called the police to report petitioner for abusing V.M. Anissa responded, “Because I didn't want to loose [sic ] my baby.”

The department filed a petition on V.M.'s behalf alleging pursuant to section 300, subdivision (a), that she was at a substantial risk of suffering serious physical harm as a result of being hit by petitioner.   The petition alleged under subdivision (a) that petitioner has a history of using inappropriate punishment, such as hitting, pulling hair, pulling V.M. off of the ground by her hair, and kneeing V.M. in the stomach.   The petition also alleged pursuant to section 300, subdivision (g), that petitioner was incarcerated and left V.M. without support, and under subdivision (j), that Isaiah and Sean were removed from petitioner because of physical abuse and that V.M. was at substantial risk of being similarly abused.   The petition identified Sergio as V.M.'s alleged father.

The juvenile court ordered V.M. detained pursuant to the petition and ordered the department to provide petitioner supervised visitation.   The court also ordered the department to initiate a search for Sergio and set the jurisdictional hearing for August 12, 2010.   The department placed V.M. in foster care.

The jurisdictional hearing was continued several times and conducted on October 6, 2010, as a contested hearing.   Meanwhile, Sergio contacted the department and acknowledged being V.M.'s father.   He said he had only seen V.M. a few times because he could not have contact with any child under the age of 14 as a stipulation of his parole.   Also, the department filed a section 388 petition asking that the juvenile court require petitioner to drug test prior to visitation.   Petitioner appeared for visits twice in August appearing to be under the influence of a substance.   When the department tested her on the following visit, she tested positive for methamphetamine.

Further, during this interim period, the department filed its jurisdictional report asking the juvenile court to sustain the subdivision (a) and (j) allegations in the petition and withdraw the subdivision (g) allegation.   The department's supporting evidence was the statements made by petitioner's family members and Aaron to the police, which the department extracted from the police reports, summarized, and included in its report.   The department attached the police reports to its jurisdictional report.

On October 1, 2010, petitioner's attorney filed an objection on hearsay grounds to the admission of specified pages of the jurisdictional report containing Anissa, Kimberly, Aaron, and Kristi's statements.   The department responded, arguing petitioner's hearsay objection was not timely filed.

On October 6, 2010, the juvenile court convened the contested jurisdictional hearing and admitted the jurisdictional report, including the contested hearsay statements.   The court explained that it found corroboration for the statements in the police officer's observations that the apartment was in disarray and that V.M. was fearful of petitioner.

Megan Barker, social worker, testified that V.M. appeared to be healthy on the day she was removed and had no bruises or marks on her body.   She said V.M. was not immediately evaluated by a physician, but was medically evaluated within 30 days of her removal.   As far as she knew, there were no concerns about V.M.'s physical condition.

Anissa testified and denied seeing anything that caused her concern about V.M. being hurt on the day the police were called to her home in July 2010.   She said she was “across the way” and Kimberly, her 19-year-old daughter, told her that petitioner pulled V.M.'s hair so she returned home.   She said she yelled at petitioner.   After she finished yelling, she went into the kitchen to get some spaghetti.   Petitioner followed her in and V.M. followed her from behind and walked over to the garbage can.   Petitioner reached out to grab V.M. by the head and V.M.'s hair got tangled in petitioner's hand.   Anissa said she saw this happen out of the corner of her eye.   She thought petitioner was grabbing V.M.'s hair so she grabbed petitioner's hand and hair and told her to let go of V.M.'s hair.   She said Kimberly and Kimberly's boyfriend came out of the bedroom and thought they were struggling so they pulled her hand off of petitioner and petitioner's hand off of V.M. She said V.M. was crying because of the commotion, but was not hurt.

Anissa also testified that there was a lot of animosity between her daughters and that much of it was directed toward petitioner.   She said she never saw petitioner hit V.M. in an abusive way.   She saw her discipline V.M. by tapping her on the behind.   She never saw petitioner yank V.M.'s head, pull her around the apartment, jerk her head from side to side, or push her down.   She said petitioner is a “wonderful mom.”   She said she had known Kimberly and Kristi to lie about petitioner.

On cross-examination by county counsel, Anissa denied telling Officer Leibee that petitioner would not let go of V.M.'s hair.   County counsel asked her if she remembered saying she did not report the abuse out of fear of losing V.M. She said, “I-I recall making that statement, but not in that order.”

Following argument, the juvenile court stated it found further corroboration of the hearsay statements by observing Anissa's testimony and through her testimony that petitioner had her hand on V.M.'s hair.   The court adjudged V.M. a dependent child pursuant to section 300, subdivisions (a) and (j), having found the allegations in the first amended petition true.   The court also set the dispositional hearing for November 10, 2010.

On October 13, 2010, the juvenile court granted the agency's request to have petitioner drug test before visits.   On November 10, the court set a contested dispositional hearing for December 8, 2010.

In its dispositional report, the department recommended the juvenile court deny petitioner and Sergio reunification services pursuant to section 361.5, subdivision (b)(6), (7) and (11) (subdivision (b)(6), (7) and (11)).4  The department's reasoning with respect to subdivision (b)(6) was that petitioner caused V.M. severe physical harm and it would not benefit V.M. to offer petitioner services because petitioner continued to use methamphetamine, did not seem to understand that her actions were inappropriate, and was not remorseful.   With respect to subdivision (b)(7), the department cited the juvenile court's denial of reunification services to petitioner in the cases of Isaiah and Sean because of Sean's severe physical abuse.   Finally, with respect to subdivision (b)(11), the department cited the termination of petitioner's parental rights as to Sean and Isaiah and its opinion reunification services would not serve V.M.'s best interests.   The department also informed the court of its plan to place V.M. with a relative.

Petitioner's attorney filed a statement of contested issues, challenging the applicability of subdivision (b)(6), (7) and (11).   She argued there was no evidence V.M. suffered severe physical harm to support denial of services under subdivision (b)(6).   She argued subdivision (b)(7) required a present denial of services as to a sibling.   Since petitioner was not being denied services for another child, subdivision (b)(7) did not apply.   As to subdivision (b)(11), she argued that V.M. was not removed from her care for the same reason that Isaiah and Sean were removed.   Rather, they were removed because Sergio severely injured Sean and the court found she knew or should have known that Sergio was abusing Sean and failed to protect him.   In addition, she contended, petitioner made subsequent efforts to protect her children by severing her relationship with Sergio.   Therefore, she argued, subdivision (b)(11) did not apply to her.

In January 2011, the juvenile court conducted the continued and contested six-month review hearing and took judicial notice of Isaiah and Sean's juvenile court records.   Megan Barker testified there was no evidence V.M. sustained any physical injury.   She also testified that petitioner tested negative for drugs beginning in mid-October 2010 and thereafter.   Under cross-examination by minor's counsel, Ms. Barker acknowledged that petitioner and V.M. had good visits, but stated she did not observe a bond between them.   She acknowledged that the department was not recommending reunification services because of the severity of the abuse to V.M.'s siblings.   She testified that petitioner was ordered to complete a child abuse batterer's treatment program as part of probation, but she was dropped from the program for noncompliance.

Petitioner testified she was attending Alcoholics/Narcotics Anonymous (AA/NA) meetings, but did not bring her signature card to court.   She also testified that she enrolled in a 52-week child abuse batterer's treatment program and attended her first class on October 7. However, she missed two consecutive classes.   In order to be reinstated in the class, she had to be cleared through her probation officer.   She said she missed one of the classes because she was pregnant and not feeling well and arrived late to the class.   She missed the other class because she forgot about it.   She also testified she and V.M. enjoyed their visits.   She said V.M. ran to her and hugged her when V.M. saw her.

On cross-examination by county counsel, petitioner testified that she did not participate in any substance abuse classes from 2005 until V.M. was removed.   She said she did not have a substance abuse problem.   However, she completed a couple of parenting classes since then.

On cross-examination by minor's counsel, petitioner testified she was not required to drug test as part of her probation, but enrolled in the drug testing program for the department.   She said she quit using methamphetamine around the end of September and beginning of October of 2010.   She denied that drug use was an issue in the prior dependency case, but acknowledged it was a problem in V.M.'s case.   She said she did not have the urge to smoke methamphetamine and did not feel that she was going to relapse.   She said she did not have a sponsor, but she knew many people to whom she could turn for help.   Petitioner testified she had attended somewhere between five to seven child abuse batterer's classes and said that she was benefiting from the program.   She said she had been attending meetings since December 2010.

On redirect examination, petitioner denied any relationship with Sergio and said she had no intention of resuming a relationship with him.   On recross-examination by county counsel, petitioner denied the allegations in the petition with respect to V.M. She said she never enrolled in the random drug testing program because she did not have a referral, but she spot tested for the department.

County counsel recalled Ms. Barker who testified that she met with petitioner at the end of September 2010.   Ms. Barker had previously made a referral for petitioner to randomly drug test and petitioner stated that she would enroll.   The referral was still valid, but petitioner had not enrolled.   She said petitioner spot tested 14 times between October 20 and December 30 and they were all negative.

At the conclusion of the hearing, the juvenile court ordered V.M. removed from petitioner's custody.   The court denied petitioner reunification services pursuant to section 361.5, subdivision (b)(6) and (11).   The court also denied Sergio reunification services and set a section 366.26 hearing.   This petition ensued.5

DISCUSSION

Petitioner challenges the sufficiency of the evidence to support the juvenile court's jurisdictional findings pursuant to section 300, subdivisions (a) and (j), and its dispositional orders denying her reunification services pursuant to section 361.5, subdivision (b)(6) and (11).   We conclude substantial evidence supports the court's jurisdictional findings and dispositional orders.

I. Jurisdictional findings

Section 300 and its subdivisions describe those minor children over whom the juvenile court may exercise its dependency jurisdiction.   The juvenile court's jurisdictional finding that a child falls within one of these statutory descriptions must be supported by a preponderance of the evidence.  (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248;  § 355, subd. (a).)

On review, we determine whether the juvenile court's jurisdictional finding is supported by substantial evidence.  (In re P.A. (2006) 144 Cal.App.4th 1339, 1344.)   In so doing, we “must accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact.  [Citation.]”  (In re Casey D. (1999) 70 Cal.App.4th 38, 53.)   Under this standard, the juvenile court, not this court, assesses the credibility of witnesses, resolves conflicts in the evidence, and determines where the weight of the evidence lies.  (Id. at pp. 52-53.)  “We affirm the rulings of the juvenile court if there is reasonable, credible evidence of solid value to support them.  [Citations.]”  (In re Matthew S. (1996) 41 Cal.App.4th 1311, 1319.)

A. Substantial Evidence Supports the Juvenile Court's Jurisdictional

Finding Under Section 300, Subdivision (a).

A child is described by section 300, subdivision (a) (subdivision (a)), and thus subject to juvenile court jurisdiction if the “child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the child's parent․  For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the child's siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm.”   “ ‘Serious physical harm’ ” under subdivision (a) of section 300 does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury. (§ 300, subd. (a).)

In this case, the juvenile court found that V.M. was at a substantial risk of suffering serious physical harm as a result of petitioner's inappropriate discipline.   Petitioner contends that, aside from her sisters' statements to the police, there was no evidence she inappropriately disciplined V.M. She further contends her sisters' statements were hearsay, which required corroborating evidence under section 355 in order to be considered by the court.   She acknowledges that the court found corroborating evidence, but argues the evidence the court cited was insufficient to support the juvenile court's jurisdictional finding under subdivision (a) of section 300.

Section 355 provides that “A social study prepared by the petitioning agency, and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction pursuant to Section 300 may be based ․“ (§ 355, subd. (b).)  However, if a party raises a timely objection to the admission of specific hearsay evidence contained in a social study pursuant to subdivision (c)(1) of section 355, the specific hearsay evidence will not be sufficient by itself to support a jurisdictional finding, unless the petitioner establishes one or more of the four exceptions enumerated in subdivision (c)(1)(A) through (D), respectively:  (A) the hearsay evidence would be admissible in a civil or criminal proceeding;  (B) the hearsay declarant is under the age of 12 years and is the subject of the jurisdictional hearing;  (C) the hearsay declarant is a peace officer, a health practitioner, a social worker, or a teacher;  or (D) the hearsay declarant is available for cross-examination.

A “timely objection” means the objection “identifies with reasonable specificity the disputed hearsay evidence and it gives the petitioner a reasonable period of time to meet the objection prior to a contested hearing.” (§ 355, subd. (c)(2).)   A proper objection does not mean that the hearsay evidence is stricken.   It simply means that the hearsay cannot be used as the sole basis for finding jurisdiction.

Real party in interest contends petitioner's objection to the hearsay statements was untimely and should have been denied.   Assuming without deciding that petitioner's objection was timely, we nevertheless conclude substantial evidence supports the juvenile court's subdivision (a) finding.

First, the juvenile court's subdivision (a) finding was not made solely on one piece of evidence or one statement.   Rather, it was made on the collective evidence, all of which was either directly admissible hearsay or hearsay for which there was sufficient corroboration.   For example, one of the more compelling hearsay statements was Anissa's statement that she did not report the physical abuse because she did not want to lose V.M. Her statement was admissible without corroboration under section 355, subdivision (c)(1)(D), because Anissa was the declarant and she was available for cross-examination.   Indeed, county counsel asked her if she made this statement and the court was able to judge the credibility of and weigh her response.

Further, though Anissa's statement did not establish the manner of abuse, it serves to corroborate Kimberly and Kristi's statements, which describe how petitioner treated V.M. Corroborating evidence is that which supports a logical and reasonable inference that the act described in the hearsay statement occurred.  (In re Cindy L. (1997) 17 Cal.4th 15, 35.)   The court found additional corroborating evidence in the state of the apartment and V.M.'s fearful reaction to petitioner, which lends credence to Kimberly and Kristi's statements that petitioner was angry at V.M. because of the mess and abused her and explains why V.M. would be afraid of petitioner.   All of this is evidence from which a reasonable inference could be drawn that the acts described by petitioner's sisters occurred.  “The reviewing court examines the evidence to determine whether the corroboration required by statute has been proved;  the weight to be given such evidence is for the” fact finder.  (People v. Parker (1965) 235 Cal.App.2d 86, 96.)

Finally, substantial evidence supports the juvenile court's finding under subdivision (a) that petitioner's inappropriate discipline placed V.M. at a substantial risk of serious physical harm.   Had petitioner yanked V.M.'s head with sufficient force, she could have seriously injured V.M.'s neck or head.   As one of the police officer's noted in the police report, petitioner could have broken V.M.'s neck.   Petitioner could also have broken V.M.'s rib(s) or ruptured an organ by kicking her with sufficient force in the chest or abdomen.

B. Substantial Evidence Supports the Juvenile Court's Jurisdictional

Finding Under Section 300, Subdivision (j).

“The state may intervene to protect a minor when the minor's sibling has been mistreated.”  (In re Dorothy I. (1984) 162 Cal.App.3d 1154, 1157.)   Under subdivision (j) of section 300, V.M. comes within the juvenile court's jurisdiction if Isaiah and Sean were abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that V.M. will be abused or neglected, as defined in those subdivisions.   The court shall consider “circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, ․ and any other factors the court considers probative in determining whether there is a substantial risk to the child.” (§ 300, subd. (j).)

Petitioner argues that the facts and circumstances surrounding Sean and Isaiah's abuse are strikingly different from those alleged in V.M.'s case.   In the prior case, she contends, Sean suffered serious injuries at the hands of Sergio.   V.M., in contrast, had no contact with Sergio and her injuries were, petitioner claims, “nonexistent.”   Petitioner further distinguishes V.M.'s case by petitioner's use of methamphetamine.

As we discussed previously, V.M. was at risk of serious physical harm because of petitioner's improper discipline.   The fact that Sean was more severely abused and that Sergio was the one who inflicted Sean's injuries does not alter our view.   As the juvenile court commented, the common theme between Sean's abuse and V.M.'s abuse with respect to petitioner had to do with her failure to protect her children.   She failed to protect Sean from Sergio's abuse, resulting in severe physical harm.   In a similar fashion, she failed to protect V.M. from her own physical abuse.   Further, petitioner's child abuse was interrupted only by police intervention.   There is every reason to believe, given the violent and cruel nature of her mistreatment of V.M. and her use of methamphetamine, that the abuse would have escalated in severity.   We conclude substantial evidence supports the juvenile court's section 300, subdivision (j), finding as to V.M.

II. Dispositional Orders

The juvenile court is required to order family reunification services whenever a child is removed from the custody of his or her parent unless the court finds by clear and convincing evidence that the parent is described by any of 15 exceptions set forth in section 361.5, subdivision (b). (§ 361.5, subds.(a) & (b)(1)-(15).)   On review, we employ the substantial evidence test, bearing in mind that clear and convincing evidence requires a heightened burden of proof.  (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.)

In this case, the juvenile court denied petitioner reunification services pursuant to section 361.5, subdivision (b)(6) and (11).   Petitioner contends there was insufficient evidence to deny her reunification services under either subpart of subdivision (b) of section 361.5.   We conclude the juvenile court erred in denying petitioner services under subdivision (b)(6), but will affirm its denial of services under subdivision (b)(11).

A. The Juvenile Court Erred in Denying Petitioner Reunification Services

Under Section 361.5, Subdivision (b)(6).

Subdivision (b)(6) of section 361.5 (subdivision (b)(6)) authorizes the juvenile court to deny a parent reunification services if the court finds that the child was adjudicated a dependent pursuant to any subdivision of section 300 as a result of severe physical harm to the child by a parent as defined in subdivision (b)(6) and the court makes a factual finding it would not benefit the child to pursue reunification services.   A finding of severe physical harm for purposes of subdivision (b)(6) “may be based on, but is not limited to, deliberate and serious injury inflicted to or on a child's body or the body of a sibling or half sibling of the child by an act or omission of the parent ․;  deliberate and torturous confinement of the child, sibling, or half sibling in a closed space;  or any other torturous act or omission that would be reasonably understood to cause serious emotional damage.”

In this case, the juvenile court denied petitioner reunification services because of the severe physical harm suffered by Sean. The court stated:

“The [c]ourt does find that 361.5(b)(6) to be applicable in that the child, [V.M.], has been adjudged a dependent pursuant to a subdivision of Section 300, in this case, both 300(a) and (j), as a result of ․ severe physical harm to [V.M.'s] sibling.  [¶] [¶] The [c]ourt finds at this time that reunification would not benefit the minor, [V.M.]. The pattern the court sees in reviewing all the documents is the failure to protect on behalf of [petitioner.]  [¶] I acknowledge that [petitioner] was not found to have physically inflicted the injuries to [Sean] but she was found to have failed to protect [Sean] while he was seriously injured by the father.   She also failed to protect Isaiah.  [¶] And in this case, she's failed to protect [V.M.] by engaging in the activities that this court found to be true.  [¶] Granted, some pulling the hair and kicking a child around on the floor may not leave physical injuries, but I do think it's reasonable and undisputed that it can-it's a humiliating way to treat a child and can lead to emotional injury and be a cause of emotional injury.”

The juvenile court erred in applying subdivision (b)(6) in this case.   First, the court did not adjudge V.M. a dependent because of severe physical harm under subdivision (a) or (j).  The court adjudged her a dependent under subdivision (a) after finding she was at a substantial risk of serious physical harm.   The court adjudged her a dependent under subdivision (j) after finding she was at a substantial risk of being physically abused.

Further, there is no authority for denying petitioner reunification services under subdivision (b)(6) based on the court's finding in a previous case that Sean suffered severe physical harm.   When subdivision (b)(6) refers to “the child,” it refers to the child as to whom reunification services are at issue.  (See Deborah S. v. Superior Court (1996) 43 Cal.App.4th 741, 749 [construing an earlier version of the statute].)   Had the Legislature intended to reach back in time and make subdivision (b)(6) applicable to a child in a prior dependency case, it could have used the phraseology contained in subdivision (b)(4), which provides that reunification services may be denied where the parent “of the child has caused the death of another child through abuse or neglect.”  (Italics added.)   Subdivision (b)(6) simply did not apply to petitioner and the court erred in denying her services on that basis.

B. The Juvenile Court Properly Denied Petitioner Reunification Services

Under Section 361.5, Subdivision (b)(11).

Section 361.5, subdivision (b)(11) (subdivision (b)(11)), allows the juvenile court to deny a parent reunification services if the court finds by clear and convincing evidence that “the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and ․ this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent.”

Petitioner does not dispute that the first prong of subdivision (b)(11) has been satisfied:  The court permanently severed her parental rights as to Isaiah and Sean in October 2008.   Rather, she challenges the juvenile court's finding that she failed to make reasonable efforts to resolve the problem that necessitated Sean and Isaiah's removal.   She contends reasonable efforts can be found in her participation in the child abuse batterer's treatment program, her discontinued use of methamphetamine in October 2010, attendance at AA/NA meetings, and participation in several parenting programs of which she completed at least one.

On a challenge to the sufficiency of the evidence to support the juvenile court's finding, the question is not whether a contrary finding might have been made, but whether substantial evidence supports the finding made by the court.  (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)  “The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order.  [Citation.]”  (Ibid.) If the finding or order is supported by substantial evidence, it will be upheld.   (Ibid.)

In this case, substantial evidence supports the juvenile court's finding petitioner failed to make subsequent reasonable efforts to treat the problem that required Isaiah and Sean's removal.   They were removed from petitioner because Sergio severely injured Sean and the court found petitioner reasonably should have known the abuse was occurring and failed to protect Sean. Subsequently, petitioner not only maintained a relationship with Sergio, but conceived another child with him.   Over time, she became the abuser.   Though petitioner completed at least one parenting class, she apparently did not benefit from it as reflected in her treatment of V.M. Further, her participation in the child abuse batterer's treatment program was the result of a court order, not a voluntary effort on her part to prevent any future abuse.   Finally, to the extent petitioner's methamphetamine use may have played a role in the court's removal of her children, she failed to persuade the court that she was making an effort to treat it.   She declined to submit to random drug testing, could not verify her attendance at meetings, and was in denial about her risk of relapse.   In light of the foregoing, we find no error in the juvenile court's order denying petitioner reunification services pursuant to section 361.5, subdivision (b)(11).

SUMMARY

We conclude substantial evidence supports the juvenile court's findings that V.M. is a dependent child described by section 300, subdivisions (a) and (j).  We conclude substantial evidence supports the juvenile court's order denying petitioner reunification services pursuant to section 361.5, subdivision (b)(11).   We conclude substantial evidence does not support the juvenile court's denial of reunification services to petitioner under section 361.5, subdivision (b)(6).   Our conclusions do not affect the juvenile court's exercise of its dependency jurisdiction in this case or its denial of reunification services to petitioner.   Nevertheless, we will order the juvenile court to vacate its order denying petitioner reunification services pursuant to section 361.5, subdivision (b)(6).

DISPOSITION

Because this court has found error in the juvenile court's order denying petitioner reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (b)(6), the juvenile court is directed to amend its dispositional order issued on January 5, 2011, to reflect that petitioner was denied reunification services pursuant to section 361.5, subdivision (b)(11), only.   In all other respects, the petition for extraordinary writ is denied.   This opinion is final forthwith as to this court.

FOOTNOTES

FOOTNOTE.  

FN1. All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

FN2. Petitioner's daughter will be referred to by her first and last initials because of the unique spelling of her first name.  (Cal. Rules of Court, rule 8.401(a)(2).).  FN2. Petitioner's daughter will be referred to by her first and last initials because of the unique spelling of her first name.  (Cal. Rules of Court, rule 8.401(a)(2).)

FN3. The department is now known as the Fresno County Department of Social Services..  FN3. The department is now known as the Fresno County Department of Social Services.

FN4. Section 361.5, subdivision (b)(6), (7) and (11), provides in relevant part:“(b) Reunification services need not be provided to a parent ․ described in this subdivision when the court finds, by clear and convincing evidence, any of the following:“(6) That the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of ․ the infliction of severe physical harm to the child, ․ as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent․“(7) That the parent is not receiving reunification services for a sibling or half sibling of the child pursuant to paragraph (3), (5), or (6).“(11) That the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent.”.  FN4. Section 361.5, subdivision (b)(6), (7) and (11), provides in relevant part:“(b) Reunification services need not be provided to a parent ․ described in this subdivision when the court finds, by clear and convincing evidence, any of the following:“(6) That the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of ․ the infliction of severe physical harm to the child, ․ as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent․“(7) That the parent is not receiving reunification services for a sibling or half sibling of the child pursuant to paragraph (3), (5), or (6).“(11) That the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from the parent.”

FN5. Sergio did not file a writ petition..  FN5. Sergio did not file a writ petition.