In re Ethan N.

• Decision Date: 08 September 2004
• Docket Number: No. F045016.,F045016.
• Citation: 18 Cal.Rptr.3d 504,122 Cal.App.4th 55
• Court: California Court of Appeals Court of Appeals
• Parties: In re ETHAN N., a Person Coming Under the Juvenile Court Law. Kern County Department of Human Services, Plaintiff and Appellant, v. Carrie B., Defendant and Respondent.

18 Cal.Rptr.3d 504

122 Cal.App.4th 55

In re ETHAN N., a Person Coming Under the Juvenile Court Law.

Kern County Department of Human Services, Plaintiff and Appellant, v. Carrie B., Defendant and Respondent.

No. F045016.

Court of Appeal, Fifth District.

September 8, 2004.

Rehearing Denied September 21, 2004.

Review Denied December 1, 2004.

B.C. Barmann, Sr., County Counsel, and Jennifer L. Thurston, Deputy County Counsel, for Plaintiff and Appellant.

Barbara S. Cohen, Walnut, under appointment by the Court of Appeal, for Defendant and Respondent.

OPINION

DAWSON, J.

The Kern County Department of Human Services (department) appeals from an order granting reunification services to Carrie B., claiming such services were not shown to be in her child's best interest. We agree and reverse.

PROCEDURAL AND FACTUAL HISTORY

One-week-old Ethan was named in a juvenile dependency petition filed September 15, 2003, pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (j).¹ The petition alleged Ethan was at risk of suffering physical harm or illness due to his mother's involvement with illegal controlled substances (§ 300, subd.(b)).² It also alleged, pursuant to section 300, subdivision (j), (1) that Ethan's half siblings, Jacob and Alexis, had been adjudged dependents of the court in July 1997 pursuant to section 300, subdivisions (a), (b), (g) and (j); (2) that reunification services as to Jacob and Alexis had been provided but had been terminated in August 1998 and permanent legal guardianship had been ordered; (3) that a half sibling, Justin, had been adjudged a dependent of the court in January 2001 pursuant to section 300, subdivisions (a), (b), (d), (f), and (j); (4) that reunification services as to Justin had been denied pursuant to section 361.5, subdivision (b)(4) and (10), and parental rights as to Justin had been terminated. A detentional social study report filed with the petition in the present case further stated that another son, Charles, had been murdered by Carrie's husband, who had been sentenced to life in prison without possibility of parole for the murder. Ethan was detained based on the reasons set forth in the petition and the social study report.

An amended petition filed a month later alleged, pursuant to section 300, subdivision (f), that Ethan was at risk of suffering serious physical harm or injury from Carrie as her neglect had caused the death of Ethan's half sibling, Charles, who died at one month of age in 2001. The petition alleged Charles died as the result of Carrie's neglect, "in that [he] ... sustained injuries consisting of an obstruction of the esophagus, a contusion to the lower portion of the head, a contusion to the lower back, a burn on the buttocks, anal penetration, six broken ribs, and evidence of six prior broken ribs."

Following a contested jurisdictional hearing, Ethan was found to be a person described by section 300, subdivisions (b), (f) and (j).³ In anticipation of the contested dispositional hearing, the social worker filed a social study and two supplemental reports chronicling the extensive services Carrie had received for Jacob, Alexis, and Justin, as well as numerous referrals received for abuse and neglect of those three children. The report also detailed the events of Charles's death.

Specifically, the report stated Jacob was born in 1992 with a positive toxicology screen for methamphetamine. Following an investigation by the social worker, it was determined the home, which included Jacob's father, Paul K., was appropriate and the case was closed.

A half year later, in 1993, a law enforcement referral was made alleging Carrie and Paul were unable to provide for Jacob. An investigation revealed Carrie and Paul had recently used methamphetamine, and there were bruises on Jacob's forehead. Jacob was taken into protective custody and adjudged a dependent child. Reunification services were ordered.

In October 1994, a referral was made alleging Carrie was incapable of caring for Jacob's newborn sister, Alexis. Carrie admitted using drugs the day before Alexis' birth. Carrie separated from Paul for a short period, reportedly due to spousal abuse, but returned to the relationship. Following reunification services, Carrie regained custody of Jacob and Alexis in September 1995.

A number of referrals were made in 1996 and early 1997 alleging various injuries to Jacob and Alexis, but the allegations were not found to be substantiated. A referral in April 1997 alleged Carrie failed to protect Jacob and Alexis from physical abuse by Christopher B., Carrie's boyfriend, and that Carrie failed to provide her children with medical care. As a result, the children again were adjudged dependents of the court and reunification services again were ordered, including counseling for substance abuse, child neglect, and parent training. Carrie and Christopher also were ordered to submit to random drug tests. Carrie made only minimal progress with the case plan; reunification services were terminated in August 1998; legal guardianship was ordered for both Jacob and Alexis.

In June 1998, Carrie delivered Justin, whose father was Christopher. A petition was filed on Justin's behalf, because Carrie was incarcerated at the time and his half siblings were dependents of the juvenile court. The child was placed with Christopher, but was later returned to both Carrie and Christopher after Carrie completed reunification services.

In January of 2001, a referral alleged severe neglect of another child, Charles, whose father was Christopher. At the age of 39 days, Charles was brought to the hospital by Carrie and Christopher with a golf ball-sized wad of paper lodged deep in his esophagus. The child died as a result of cerebral hypoxia. At the time of his death, Charles also had severe injuries to his rectum and anus, 12 broken ribs in various stages of healing, injuries to his face, a torn frenulum, and a contusion to the back of the head. Examining experts determined that Charles had suffered repeated and extensive abuse.

During the investigation following Charles's death, Carrie denied knowing how Charles died. She had noticed a rash on the baby's bottom, but had not taken him to the doctor because Christopher told her the baby would be taken into protective custody.

As a result of Charles's death, Justin was taken into protective custody and was found to be a dependent of the juvenile court. Family reunification services were not provided because Carrie had failed to unify with Jacob and Alexis, and because she had caused the death of Charles through abuse or neglect. Parental rights as to Justin were terminated in February 2002.

In the current action, the social worker recommended that Carrie not be offered reunification services based on her failure to reunite with Jacob, Alexis, and Justin (§ 361.5, subd. (b)(10) & (11)), and because Carrie caused the death of Charles through abuse or neglect (id., subd. (b)(4)).

At the contested dispositional hearing, the social worker, Cathy Tessandori, testified that the initial plan established at the time of detention consisted of "[p]arenting, child neglect, failure to protect, substance abuse counseling, and submitting to unannounced drug testing on a monthly basis." Supervised visits were scheduled for one hour per week. Tessandori testified that Carrie had completed a parenting class. She was enrolled in a class addressing issues of parent training, child neglect and failure to protect, and had completed 15 of the 25 sessions at the time of the hearing. Carrie had completed the substance abuse residential treatment program. She had provided eight drug tests since Ethan had been detained, and all had been clean.

Tessandori testified that Carrie attended all visitations with Ethan, except one, which she missed because of a dental appointment. Tessandori supervised the visits and found Carrie's behavior toward Ethan to be appropriate and their interaction normal. According to Tessandori, all of the certificates and information she received from various agencies and programs showed Carrie had made positive progress in each. According to Tessandori, "She's demonstrating steady progress in her case plan."

Carrie testified and acknowledged that her two oldest children had been removed from her as a result of her substance abuse and physical abuse by Christopher. She explained that she had gone through reunification services, but had been unable to overcome her substance abuse problems at that time. She also acknowledged that her child Justin, whose father was Christopher, had been removed from her due to her substance abuse, the earlier dependency proceedings, and eventually due to Charles's death. Carrie testified that her son Charles was killed by his father Christopher, and that she was not charged with any crime in connection with Charles's death. At the time Justin was removed from Carrie, she participated in additional substance abuse counseling, but did not complete the program because there was no possibility of reunification with Justin. According to Carrie, "... I gave up. I quit because I wasn't getting anything so it would have been for nothing."

After Charles's death, Carrie was convicted of possession of methamphetamine for sale and spent time in jail. Following that conviction, Carrie entered a substance abuse program, which she completed, and then entered an outpatient program as well as attending Narcotics Anonymous meetings.

Carrie acknowledged that the court previously had found she had failed to protect her children from Christopher. She also acknowledged that the court in Justin's case found either her "active participation or neglect" caused the death of Charles. She testified that she thought she had made "a lot of progress" in the area of protecting her children from the conduct of others, but still had "a little ways to go with it." She also opined that her previous attempts at drug...