Albert B., In re

• Decision Date: 07 November 1989
• Docket Number: No. F010939,F010939
• Citation: 215 Cal.App.3d 361,263 Cal.Rptr. 694
• Court: California Court of Appeals Court of Appeals
• Parties: In re ALBERT B. et al., Persons Coming Under the Juvenile Court Law. TULARE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. ALBERT B. et al., Defendants and Appellants.

Page 694

263 Cal.Rptr. 694

215 Cal.App.3d 361

In re ALBERT B. et al., Persons Coming Under the Juvenile Court Law.

TULARE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. ALBERT B. et al., Defendants and Appellants.

No. F010939.

Court of Appeal, Fifth District, California.

Nov. 7, 1989.

Nancy Marsh, Fresno, Eleanor M.W. Youngsmith, San Francisco, and Gregory M. Chappel, under appointments by the Court of Appeal, Oakhurst, for defendants and appellants

Lita O'Neill Blatner, County Counsel, Robert L. Felts, Principal Atty., and Teresa M. Saucedo, Deputy County Counsel, Visalia, for plaintiff and respondent.

Ann Jory, under appointment by the Court of Appeal, Carmel, for Minors.

OPINION

BEST, Associate Justice.

STATEMENT OF THE CASE

On December 16, 1986, an amended petition was filed alleging that Albert B., Jr., and Rosemary B. came within WELFARE AND INSTITUTIONS CODE SECTION 300¹, subdivisions (a) and (d), and requesting that they be declared dependents of the juvenile court. Specifically, the petition allegedthat the minors' home was an unfit place due to neglect because Rosemary was malnourished and suffering from "failure to thrive," both minors were extremely dirty and their parents had failed to provide the necessary medical care because Rosemary had severe cradle cap and severe diaper rash. Albert was born on May 17, 1985, and was 18 months old at the time. Rosemary was born on July 29, 1986, and was 5 months old at the time. Both minors were taken into custody.

On January 27, 1987, a contested jurisdictional hearing was held. The minors were represented by the district attorney. The court found the allegations in the petition to be true on counts I and II.

On March 3, 1987, a dispositional hearing was held. The minors were adjudged dependents and custody was taken from the parents and given to the department of social services.

On September 16, 1987, a semiannual review hearing was held. All attorneys agreed that increased visitation was in order. The court ordered some unsupervised visitation and overnights, conditioned on the house being clean to the satisfaction of the child protective services.

On October 19, 1987, a hearing was held to review the progress of the increased visitation. The attorneys entered into a stipulation increasing visitation on a slower schedule.

On December 15, 1987, a review hearing was held. At that point, no overnight visits had taken place. There was a divergence of opinions regarding the suitability of overnight visits. The court ordered one overnight visit, followed by a psychological evaluation. More overnight visits would be allowed if the evaluation recommended them.

On August 9, 1988, a contested hearing was held. The reunification plan was terminated. The court found that it would be detrimental to the children to be returned to their parents even if services were continued and that there was no likelihood of reunification and the plan for the minors was referral for adoption. Monthly visitation was ordered to be arranged and supervised at the discretion of the social worker.

STATEMENT OF FACTS

Calvin Davis, a social worker for the Tulare County Child Protective Services, investigated the home of minors Albert and Rosemary B. on November 25, 1986. They were living in a former motel, which had been converted into apartments. Davis testified that he found Rosemary in an extremely malnourished condition with a severe diaper rash and both children were dirty and extremely "odoriferous." Davis took them into custody because he felt that Rosemary was in imminent danger and that she appeared to be so severely malnourished as to be either failure to thrive or in actual danger of not surviving. The mother informed them that Rosemary had not seen a doctor since birth.

In the middle of December 1986, Dr. Mary McDonald, a licensed clinical psychologist, examined the two children. She described Albert as an unusual looking child because of a misshaped head that is flat on the left rear side. The doctor noted Albert had an unstable gait and did not walk as she would expect an 18-month-old or a toddler to walk. The doctor further noted that no vocalizations or any type of verbalization was heard during the evaluation. Similarly, the foster mother had not heard any in the home. Also, when the child had been taken to see Dr. Cheney approximately 10 days earlier, it was also reported that no language had been heard.

While Albert would smile responsively in return to a smile, there was never any babbling at any time. During the evaluation, Albert behaved as if he had a mild hearing loss. However, the results of a hearing test indicated there was enough hearing that language could have been developed. When Albert was first seen, he had no affect, was disinterested, would stare blankly into space and was not interested in toys or objects.

Dr. McDonald concluded that Albert was developmentally delayed (i.e., "mentally retarded") from six or seven months to a year, depending on what developmental area was being considered. Albert was also significantly emotionally impaired. He had sleep problems, waking up every two hours during the night screaming. Albert was also depressed and needed environmental stimulation and nurturance. It was Dr. McDonald's opinion that the cause of the above was neglect and Albert not having had the appropriate experiences of social interaction. She admitted that she had not ruled out a birth defect as a possible cause of his slow development.

Rosemary was described as being on schedule developmentally several months after she had been taken into custody, but very emaciated when the doctor first observed her at four months of age. However, Rosemary was still at risk developmentally given the condition she was in when discovered. She was frequently irritable and needed to be held.

Dr. Cheney, a pediatrician, testified that she had examined Rosemary for the first time on November 25, 1986. Rosemary was emaciated and was, at eight pounds ten and one-half ounces, significantly below the fifth percentile for weight for her age. She had severe crusting on the scalp, like dermatitis, which was probably dirt and oil because it washed off. Her abdomen was protuberant, her extremities were very thin with almost no subcutaneous tissue and she had extremely long and dirty fingernails. Rosemary whined most of the time, smiling only minimally. Dr. Cheney concluded that Rosemary was severely malnourished with signs of neglect.

When Dr. Cheney examined Rosemary again on November 28, 1986, she now weighed nine pounds, in spite of diarrhea. She was smiling more, starting to coo, did not whine or cry, her scalp was completely clear and her abdomen less protuberant.

Dr. Cheney treated Rosemary several times in December for fairly severe respiratory problems. She felt Rosemary had an allergic tendency and would continue to have difficulty with wheezing and needing medication, possibly hospitalization, whenever she gets a cold. At five months of age, the doctor thought Rosemary had a pretty good prognosis in terms of long term outcome. Yet, the doctor felt she was still at risk due to the severe malnutrition which may have interfered with the development of Rosemary's brain. However, it was too early to predict.

On November 26, 1986, Dr. Cheney examined Albert. He was slim, but adequately nourished. Albert was irritable, did not smile, laugh, coo, or use any language. His gait was unstable as though he had not been walking for very long. He appeared to be developmentally delayed and his emotional lack of social interaction suggested neglect.

Albert's head circumference was significantly below the fifth percentile. The left side of his head was very flattened, as if he spent most of the time on his back with his head turned. There was nothing in his birth records regarding this flattening. Rosemary also had a slight flattening, which the doctor assumed was from the same cause. While the doctor was unsure of the cause of the flattening of the head, he noted that if it becomes round as time goes by, then the cause was positional.

When Albert was examined again on December 8, 1986, he had become significantly more social. On December 16, 1986, the foster mother reported to Dr. Cheney that Albert was beginning to play patty cake and to finally smile.

Dr. Cheney's prognosis for Albert is very guarded due to the clear evidence of developmental delay. She was of the opinion that it is highly unlikely that Albert will ever develop normally.

Albert's father testified that his son had been born prematurely and was in the hospital three weeks. When his daughter Rosemary was born, she did not have any problems. He blamed her emaciated condition on the fact that his wife mixed the formula incorrectly.

Both parents were tested by a clinical psychologist. He found the father to be of greater intelligence than the mother. With an I.Q. of 72, the father was at the borderline level of mental retardation, while the mother was placed at the highest level of mental retardation with an I.Q. of 64.

Throughout the proceedings, the parents were provided with various services to aid in reunification. Family care workers met with them to discuss parenting issues. They were requested to attend classes and partially complied. However, they continued to have problems with home sanitation. On an unannounced visit on May 29, 1988, the social worker found the apartment unacceptable. The beds and floor in the minors' room were covered with assorted clothing, shoes, suitcases and clutter; the bathroom was filthy, full of hair and piles of dirty clothing under the sink; the kitchen garbage was overflowing and debris covered the counter tops and under counter shelves. There was also an engine in the middle of the living room. A second unannounced visit revealed a similar situation, with inadequate food in the refrigerator and Rosemary in a dirty condition....